[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as

League of Women Voters of Ohio v. Ohio Redistricting Comm., Slip Opinion No. 2022-Ohio-65.]

NOTICE
This slip opinion is subject to formal revision before it is published in an
advance sheet of the Ohio Official Reports. Readers are requested to
promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
South Front Street, Columbus, Ohio 43215, of any typographical or other
formal errors in the opinion, in order that corrections may be made before
the opinion is published.

SLIP OPINION NO. 2022-OHIO-65

LEAGUE OF WOMEN VOTERS OF OHIO ET AL. v. OHIO REDISTRICTING
COMMISSION ET AL.
BENNETT ET AL. v. OHIO REDISTRICTING COMMISSION ET AL.
OHIO ORGANIZING COLLABORATIVE ET AL. v. OHIO REDISTRICTING
COMMISSION ET AL.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as League of Women Voters of Ohio v. Ohio Redistricting Comm.,
Slip Opinion No. 2022-Ohio-65.]
Redistricting—Original actions under Ohio Constitution, Article XI—The Ohio
Redistricting Commission did not attempt to meet the standards set forth in
Article XI, Section 6 of the Ohio Constitution in passing the General
Assembly–district plan—Plan invalid—The Ohio Redistricting Commission
shall be reconstituted, convene, and adopt a plan in conformity with the
Ohio Constitution.
(Nos. 2021-1193, 2021-1198, and 2021-1210—Submitted December 8, 2021—
Decided January 12, 2022.)
 SUPREME COURT OF OHIO

ORIGINAL ACTIONS filed pursuant to Ohio Constitution, Article XI, Section 9.

__________________
STEWART, J.
{¶ 1} Respondent Ohio Redistricting Commission adopted a General
Assembly–district plan in September 2021 to be effective for the next four years.
The complaints in these three cases allege that the plan is invalid because the
commission did not comply with Article XI, Sections 6(A) and 6(B) of the Ohio
Constitution, which require the commission to attempt to draw a plan that meets
standards of partisan fairness and proportionality. In one case, the challengers also
allege that the plan violates the Ohio Constitution’s guarantees of equal protection,
assembly, and free speech.
{¶ 2} We hold that the plan is invalid because the commission did not
attempt to draw a plan that meets the proportionality standard in Article XI, Section
6(B). We also conclude that the commission did not attempt to draw a plan that
meets the standard in Section 6(A)—that no plan shall be drawn primarily to favor
a political party. Because we declare the plan invalid under these sections, we do
not decide whether the plan also violates the rights to equal protection, assembly,
and free speech guaranteed under the Ohio Constitution. We order the commission
to be reconstituted and, within ten days of this judgment, to adopt a new plan in
conformity with the Ohio Constitution.
I. BACKGROUND
A. Overview of Article XI of the Ohio Constitution
{¶ 3} In Wilson v. Kasich, 134 Ohio St.3d 221, 2012-Ohio-5367, 981
N.E.2d 814, we rejected a challenge to the 2011 apportionment of General
Assembly districts adopted under a former version of Article XI of the Ohio
Constitution. We stated that former Article XI did not require political neutrality,
politically competitive districts, or representational fairness in the creation of state
legislative districts. Id. at ¶ 14. Accordingly, we held that there was nothing

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unconstitutional about the apportionment board—the body then responsible for

drawing the state legislative-district maps—considering partisan factors in its
apportionment. Id. at ¶ 13-14. The General Assembly–district map that we upheld
in Wilson was in effect through the 2020 general election.
{¶ 4} In November 2015, Ohio voters overwhelmingly approved an
amendment to the Ohio Constitution that repealed former Article XI and replaced
it with a new version, which established a new process for creating General
Assembly districts. The amendment provided for the creation of a seven-member
Ohio Redistricting Commission, composed of the governor, the auditor of state, the
secretary of state, one person appointed by the speaker of the House of
Representatives, one person appointed by the House minority leader, one person
appointed by the Senate president, and one person appointed by the Senate minority
leader. Ohio Constitution, Article XI, Section 1(A). The commission is responsible
for redistricting the boundaries of the 99 districts of the House of Representatives
and the 33 Senate districts in any year ending in the numeral one—after the release
of the federal decennial census.1 Id. at Section 1(C). The commission “shall draft
the proposed plan in the manner prescribed in” Article XI. Id.
{¶ 5} Article XI of the Ohio Constitution imposes various requirements for
a General Assembly–district plan. For example, Section 3(A) provides that the
state’s population is to be divided by 99 and by 33 and that those “quotients shall
be the ratio of representation in the house of representatives and in the senate,
respectively.” Section 3(B)(1) specifies that no district shall contain a population
of less than 95 percent or more than 105 percent of the applicable ratio of
representation set forth in Section 3(A). Section 3(B)(2) provides that a General
Assembly–district plan “shall comply with all applicable provisions of the

1. If the federal decennial census “is unavailable,” Article XI, Section 3(A) of the Ohio Constitution
provides an alternative way to determine the state’s population by “such other basis as the general
assembly may direct.”

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constitutions of Ohio and the United States and of federal law.” Sections 3(C), (D),
and (E) control the complex process for creating and numbering House districts,
with rules relating to the splitting of counties, municipal corporations, and
townships. Section 4 controls the process for drawing Senate districts, and Section
5 relates to senators whose district boundaries change due to redistricting under
Article XI before their terms expire.
{¶ 6} Of particular relevance to this litigation, Section 6 provides:

The Ohio redistricting commission shall attempt to draw a

general assembly district plan that meets all of the following
standards:
(A) No general assembly district plan shall be drawn
primarily to favor or disfavor a political party.
(B) The statewide proportion of districts whose voters, based
on statewide state and federal partisan general election results
during the last ten years, favor each political party shall correspond
closely to the statewide preferences of the voters of Ohio.
(C) General assembly districts shall be compact.
Nothing in this section permits the commission to violate the
district standards described in Section 2, 3, 4, 5, or 7 of this article.

Ohio Constitution, Article XI, Section 6.

{¶ 7} The commission must adopt a final plan under Section 1(C) by
September 1 of any year ending in the numeral one. To adopt a plan under Section
1(C), at least two members of each of the two largest political parties represented
in the General Assembly must be in the majority voting for the plan. Ohio
Constitution, Article XI, Section 1(B)(3). A plan adopted under Section 1(C) is
effective for ten years. See Ohio Constitution, Article XI, Section 1(C) (the

4
 January Term, 2022

governor must convene the commission only in a year ending in the numeral one,
a plan is effective upon filing with the secretary of state, and the commission is
automatically dissolved four weeks after adoption of a General Assembly–district
plan or congressional-district plan, whichever is later). But if the commission does
not meet the September 1 deadline to adopt a plan by the requisite bipartisan vote,
Section 8 provides an alternative route for adopting a final plan—what the parties
here refer to as an “impasse procedure.”
{¶ 8} Under the impasse procedure, the commission must introduce a
district plan proposed by a simple majority vote of the commission, hold a public
hearing on the proposed plan, and adopt a final plan no later than September 15.
Ohio Constitution, Article XI, Section 8(A)(1) through (3). If the majority adopting
the plan includes at least two members of each political party, the plan will remain
in effect for ten years. Id. at Section 8(B). Without that level of bipartisan support,
the plan will remain in effect “until two general elections for the house of
representatives have occurred under the plan”—i.e., four years. Id. at Section
8(C)(1)(a). If the commission adopts a four-year plan, the plan must include a
statement explaining

what the commission determined to be the statewide preferences of

the voters of Ohio and the manner in which the statewide proportion
of districts in the plan whose voters, based on statewide state and
federal partisan general election results during the last ten years,
favor each political party corresponds closely to those preferences,
as described in division (B) of Section 6 of this article.

Id. at Section 8(C)(2).

{¶ 9} Under Section 9(A), this court has “exclusive, original jurisdiction in
all cases arising under” Article XI.

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B. Factual background and procedural history

1. The commission, the map-drawing process, and the September 1 deadline
{¶ 10} On August 6, 2021, the governor convened the first meeting of the
Ohio Redistricting Commission. See Ohio Constitution, Article XI, Section 1(C).
The commission consisted of respondents Governor Mike DeWine, Secretary of
State Frank LaRose, Auditor of State Keith Faber, Speaker of the House Robert
Cupp, and President of the Senate Matthew Huffman—who are members of the
Republican party—and House Minority Leader Emilia Sykes and Senator Vernon
Sykes—who are members of the Democratic party. House Speaker Cupp and
Senator Sykes were appointed as commission cochairs. Other than administering
oaths of office and announcing that the commission would schedule public
hearings, the commission did not conduct any business on August 6.
{¶ 11} Between August 23 and August 27, the commission held multiple
hearings during which members of the public gave input about the redistricting
process.
{¶ 12} The commission held its second meeting on August 31—one day
before the deadline to adopt a final district plan. See Ohio Constitution, Article XI,
Section 1(C). Senator Sykes presented a proposed district plan drafted by the
Senate Democratic Caucus. After a presentation by a map drawer from the caucus,
the commission members had a discussion that suggested that they had not yet
agreed on a process for drafting a district plan. House Minority Leader Sykes asked
when the commission intended to present a proposed plan for public comment.
House Speaker Cupp replied that a district plan was “being developed” but would
not be available by the September 1 deadline due to a delay in receiving census
data. Leader Sykes asked who was participating in drafting that plan and when she
could expect to participate in the process. She also quoted the portion of Section
1(C) stating that the “commission shall draft the proposed plan.”

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 January Term, 2022

{¶ 13} House Speaker Cupp explained that the commission itself would not
be drafting a plan, that anyone may present a plan for consideration, and that he did
not know when other maps would be presented but that the commission had a
September 15 deadline. Senate President Huffman stated that the Republican
members of the Senate were working on a proposal. He also expressed his
expectation that each of the legislative caucuses would present a proposed plan and
that the commission would then consider those proposals along with plans
submitted by the public. The commission adjourned without adopting a plan by the
September 1 deadline.
2. The commission adopts a proposed plan on September 9
{¶ 14} On September 8, the commission announced that it would meet at
10:00 a.m. and 2:00 p.m. the following day.
{¶ 15} At the 10:00 a.m. meeting, Senate President Huffman offered a
proposed plan and introduced Ray DiRossi and Blake Springhetti, who worked for
the Senate and House Republican Caucuses, respectively, to talk about the
proposal. Senator Sykes asked DiRossi how the plan satisfied the requirements of
Article XI, Section 6(B), the standard regarding whether the partisan proportion of
the plan closely corresponds to the statewide preference of voters. DiRossi stated
that their proposal complied with all constitutional requirements but also noted that
their analysis of election data was not yet complete and was “ongoing.” Leader
Sykes asked how the proposal complied with the Voting Rights Act. DiRossi
indicated that the legislative leaders had instructed them not to use racial or
demographic data and that therefore, they did not do so.
{¶ 16} At the 2:00 p.m. meeting, Senate President Huffman moved the
commission to select the plan introduced by the Republican caucuses as the
commission’s proposed plan. Senator Sykes and House Minority Leader Sykes
expressed concerns, including that the map drawers had not considered the
proportionality provision in Article XI, Section 6(B). Other members expressed

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their beliefs that Senate President Huffman’s plan was merely a “first draft” and
that the commission members could now start negotiations. The commission voted
five to two, along party lines, to introduce Senate President Huffman’s plan as the
commission’s proposed plan.
3. The commission adopts a four-year plan on September 16
{¶ 17} On September 12, 13, and 14, the commission held lengthy public
hearings regarding its proposed plan. During the September 13 hearing, Senator
Sykes and House Minority Leader Sykes offered an amendment that they believed
would move the plan closer to the proportionality standard articulated in Article XI,
Section 6(B).
{¶ 18} On the morning of September 15, the commission commenced its
final meeting. Senate President Huffman immediately moved for a recess until 3:00
p.m. so that the members could continue consulting with each other. The
commission, however, did not reconvene until approximately 11:15 p.m.
{¶ 19} Upon reconvening, Senate President Huffman introduced an
amendment to the commission’s proposed plan. He stated that the changes were
based on conversations between commission members and feedback from the public
hearings. He also noted that his amendment would move the commission’s proposed
plan closer to the amended plan offered by the Sykeses on September 13. Senate
President Huffman opined that the commission’s proposed plan, with his
amendment, was the only submitted plan that met Article XI’s requirements.
{¶ 20} The commission voted five to two, along party lines, to adopt the
amendment. Senate President Huffman then moved the commission to adopt his
amendment as the final plan. Senator Sykes and House Minority Leader Sykes
gave lengthy statements explaining why they would be voting against the plan.
{¶ 21} Secretary LaRose expressed disappointment in the commission’s
failure to reach a ten-year plan. He stated:

8
 January Term, 2022

I’m casting my yes vote with great unease. I fear, I fear we’re going
to be back in this room very soon. This map has many shortcomings,
but they pale in comparison to the shortcomings of this process. It
didn’t have to be this way. It didn’t have to be this way. Some of
us worked in good faith, in a bipartisan way, to try to get a
compromise. There are members of this committee who I do not
believe worked in good faith to try to reach that compromise, but
here we are.

{¶ 22} Governor DeWine similarly stated that he was disappointed and

“very, very sorry” about where the commission ended up. He said:

I will vote to send this matter forward. But it will not be the end of
it. We know that this matter will be in court. I’m not judging the
bill one way or another. That’s up for, up to a court to do. What I
do, what I am sure in my heart is that this committee could have
come up with a bill that was much more clearly, clearly
constitutional. I’m sorry we did not do that.

{¶ 23} Auditor Faber also expressed disappointment about the process. He

noted that “the reality is, compared to some of the other maps we’ve had a choice
to go with, this map isn’t that bad. It’s not that good either.” He intended to “vote
yes with some apprehension.”
{¶ 24} Sometime after midnight on September 16, the commission voted
five to two, along party lines, to adopt the amendment as its final General
Assembly–district plan. President Huffman estimated that under the plan, 62 seats
in the Ohio House of Representatives would lean in favor of Republican candidates
and 37 seats would lean in favor of Democratic candidates. In the Ohio Senate,

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they estimated that 23 seats would lean Republican and 10 seats would lean
Democratic.
4. The commission adopts a statement required under Article XI, Section 8(C)(2)
{¶ 25} After the vote, Senate President Huffman moved for the adoption of
a statement, required under Article XI, Section 8(C)(2), explaining what the
commission determined to be the statewide preferences of Ohio voters and how the
commission’s plan corresponded to those preferences. The statement indicated that
after considering the results of 16 statewide state and federal partisan elections in
the preceding ten years,

the Commission determined that Republican candidates won thirteen

out of sixteen of those elections resulting in a statewide proportion of
voters favoring statewide Republican candidates of 81% and a
statewide proportion of voters favoring statewide Democratic
candidates of 19%. When considering the number of votes cast in
each of those elections for Republican and Democratic candidates,
the statewide proportion of voters favoring statewide Republican
candidates is 54% and the statewide proportion of voters favoring
statewide Democratic candidates is 46%. Thus, the statewide
proportion of voters favoring statewide Republican candidates is
between 54% and 81% and the statewide proportion of voters
favoring statewide Democratic candidates is between 19% and 46%.
* * * [T]he Commission adopted the final general assembly district
plan, which contains 85 districts (64.4%) favoring Republican
candidates and 47 districts (35.6%) favoring Democratic candidates
out of a total of 132 districts. Accordingly, the statewide proportion
of districts whose voters favor each political party corresponds
closely to the statewide preferences of the voters of Ohio.

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 January Term, 2022

The statement further noted that the final plan complied with all the “mandatory
requirements” in Sections 2, 3, 4, 5, and 7 and that the commission’s “attempt to
meet the aspirational standards” of Section 6 did not result in any violation of the
“mandatory requirements.”
{¶ 26} House Minority Leader Sykes submitted a statement on behalf of
herself and Senator Sykes. Among other things, their statement opined that the
commission’s final plan failed to comply with Section 6 and that the majority’s
statement laid out an “absurd description of how it allegedly meets the requirements
of Section 6(B).”
{¶ 27} The commission then accepted the majority’s Section 8(C)(2)
statement.
5. Petitioners file three actions in this court2
{¶ 28} Within 12 days of the commission’s having adopted its final plan,
three separate lawsuits were filed in this court against the commission and its
members. First, the League of Women Voters of Ohio, the A. Philip Randolph
Institute of Ohio, and six individual voters3 filed a complaint alleging that the plan
violates Sections 6(A) and 6(B) of Article XI. Second, ten individual voters4 filed a
complaint similarly alleging that the commission’s plan violates Sections 6(A) and
6(B). Third, the Ohio Organizing Collaborative (“OOC”), the Ohio chapter of the

2. The parties refer to themselves as relators and respondents. However, these actions were not
brought in the name of the state. See R.C. 2731.04; S.Ct.Prac.R. 12.03 (the party filing an action in
mandamus, prohibition, procedendo, or quo warranto is referred to as a “relator”). Therefore, this
opinion will refer to the parties bringing the actions as “petitioners.”

3. The six voters in case No. 2021-1193 are Tom Harry, Tracy Beavers, Valerie Lee, Iris Meltzer,
Sherry Rose, and Bonnie Bishop.

4. The ten voters in case No. 2021-1198 are Bria Bennett, Regina C. Adams, Kathleen M. Brinkman,
Martha Clark, Susanne L. Dyke, Carrie Kubicki, Meryl Neiman, Holly Oyster, Constance Rubin,
and Everett Totty.

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Council on American-Islamic Relations, the Ohio Environmental Council, and six

individual voters5 filed a complaint, also alleging that the commission’s plan violates
Sections 6(A) and 6(B). The third group further alleges that the plan violates Section
3(B)(2), which requires the plan to “comply with all applicable provisions of the
constitutions of Ohio and the United States and of federal law.”
{¶ 29} Pursuant to a court-ordered schedule, the parties conducted discovery
and submitted evidence and merit briefing. See 164 Ohio St.3d 1450, 2021-Ohio-
3424, 173 N.E.3d 1248; 164 Ohio St.3d 1457, 2021-Ohio-3607, 174 N.E.3d 805.
This court heard oral arguments in the cases on December 8, 2021. Following oral
arguments, we sua sponte ordered the parties to file supplemental briefs on the
question whether Article XI, Section 8(C)(1) of the Ohio Constitution has any effect
on this court’s authority to grant the relief requested by petitioners. 165 Ohio St.3d
1476, 2021-Ohio-4381, 177 N.E.3d 986; 165 Ohio St.3d 1476, 2021-Ohio-4381, 177
N.E.3d 986; 165 Ohio St.3d 1476, 2021-Ohio-4381, 177 N.E.3d 987. The parties
filed their supplemental briefs on December 16 and 17.
C. Evidence
{¶ 30} As evidence, the parties filed ten depositions, nine expert reports,
multiple fact affidavits, and a voluminous number of additional documents. This
evidence elucidates the activity that took place both before and in between the
commission meetings.
1. The commission’s role in drawing a plan
{¶ 31} The commission had no employees and did not itself engage in any
map drawing. Instead, each pair of legislative caucuses was allocated $150,000 for
redistricting purposes. Later, the Democratic caucuses requested and received an
additional $200,000. No funds were allocated to the governor, the secretary of
state, or the auditor.

5. The six voters in case No. 2021-1210 are Pierrette Talley, Samuel Gresham Jr., Ahmad Aboukar,
Mikayla Lee, Prentiss Haney, and Crystal Bryant.

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 January Term, 2022

{¶ 32} The expectation—at least for the majority of the commission

members—was that the legislative caucuses would draft and propose maps and that
the commission members would thereafter negotiate and adopt a final plan. For
example, Governor DeWine believed that the best way to adopt a ten-year plan was
for the Democratic and Republican members of the commission to each come
forward with their own maps “and then see where everybody was and then [he would]
be a person that could try and pull this together.” Senator Sykes and House Minority
Leader Sykes, however, believed that the commission itself, not the political
caucuses, should draw the maps. Secretary LaRose and Auditor Faber expected the
caucuses to draw the initial maps, but they also assumed that they would have access
to map-drawing software. Secretary LaRose also expected that he would have access
to the map drawers.
2. Delays in receiving census data
{¶ 33} Although the United States Census Bureau was required to release
Ohio’s population data by April 1, 2021, it did not do so until August 12. The delay
required the commission to adopt a plan under a significantly shortened timeframe.
In June 2021, House Minority Leader Sykes and Senate Minority Leader Kenny
Yuko asked Governor DeWine to convene the commission—despite the census
delays—in order to address preliminary issues such as staffing and the adoption of
procedural rules. The governor did not do so, because he did not see a reason to
convene the commission long before the receipt of the census data.
3. The map drawers: DiRossi and Springhetti
{¶ 34} Senate President Huffman and House Speaker Cupp oversaw the
process of drawing the district plan that the commission ultimately adopted. Senate
President Huffman assigned DiRossi, the finance director for the Ohio Senate, and
House Speaker Cupp assigned Springhetti, the finance director for the Ohio House
of Representatives, as the map drawers. Springhetti had no prior map-drawing
experience, but DiRossi was actively involved in drawing the maps for the 2001

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and 2011 apportionment processes. Senate President Huffman did not think that
hiring outside consultants was necessary, because according to him, DiRossi
“might be the most qualified person in the United States.”
{¶ 35} Before receiving the census data for their work on the map,
Springhetti and DiRossi obtained licenses for Maptitude, mapping software that
would help them design and draw districts. After receiving the census data, they
began the map-drawing process.
4. Instructions to the map drawers
{¶ 36} Senate President Huffman and House Speaker Cupp instructed
DiRossi and Springhetti to comply with certain provisions of the Constitution, but
they did not instruct the map drawers to comply with Article XI, Section 6.
{¶ 37} Senate President Huffman testified during his deposition that
because Article XI, Section 6 “is not mandatory” but is “aspirational,” he did not
have any specific conversations with DiRossi about that section. In distinguishing
between mandatory and aspirational provisions in Article XI, Senate President
Huffman explained: “Mandatory means you have to do it; aspirational means you
don’t. And of course that’s why the word ‘attempt’ is in [Section 6].” When asked
whether he “understood that as a commissioner [he] had a mandatory obligation to
attempt to do the items that are listed in 6(A), (B), and (C),” Senate President
Huffman responded, “No, I don’t think that’s correct.” He believed that his “job
was to attempt to draw a ten-year map through sincere and active negotiations with
the other side.” DiRossi testified that he did not know how to interpret Section 6,
that Senate President Huffman told him not to focus on it, and that it was not
DiRossi’s “responsibility.”
{¶ 38} According to Springhetti, House Speaker Cupp identified the
mandatory sections of Article XI as Sections 2, 3, 4, 5, and 7. Springhetti did not
have any communications with House Speaker Cupp about the meaning of
“attempt” in Section 6. House Speaker Cupp testified that he was focused on the

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 January Term, 2022

“line drawing part” and the population requirements; he acknowledged that he did
not specifically instruct Springhetti to follow or “look at Section 6.” House Speaker
Cupp believed that he had complied with Section 6 by attempting to negotiate with
the Democratic members of the commission after the Republican-drawn plan was
introduced on September 9.
5. Access to the map drawers
{¶ 39} Throughout the process, DiRossi and Springhetti reported their
progress to Senate President Huffman and House Speaker Cupp, who occasionally
visited the map drawers’ office to view information on their computer screens.
Other commission members had no direct access to DiRossi and Springhetti and
had no role in drafting or creating the maps adopted by the commission. This
frustrated some of the commission members, especially Secretary LaRose, who
testified that he repeatedly asked to collaborate with, and have access to, the
Republican-designated map drawers but was excluded from the process.
6. Consideration of partisan data
{¶ 40} In their depositions, DiRossi and Springhetti explained that when
using Maptitude to draw district boundaries, a display window appeared on the
computer screen showing information about the proposed district, including the
partisan leaning of the district. When they changed the district’s lines, that
information also would change.
{¶ 41} DiRossi claims that he had not yet completed a partisan analysis of
the Republicans’ proposed plan before it was introduced at the commission’s
September 9 meeting. Therefore, when Senator Sykes inquired about the plan’s
compliance with Article XI, Section 6(B) on September 9, DiRossi answered that
the analysis was “ongoing.” DiRossi testified that he was unsure whether he ever
completed that analysis; after the September 9 meeting, his focus shifted to
supporting Senate President Huffman in his negotiations with the other commission
members.

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{¶ 42} Senate President Huffman testified that when the commission met
on September 9, he was unaware of the proportion of districts that favored each
political party and had not conducted his own analysis regarding whether the plan
complied with Article XI, Section 6(B). The partisan breakdown of the plan
became more important, Senate President Huffman said, when negotiating with the
Democratic members of the commission. After September 9, Senate President
Huffman asked DiRossi to change some Senate districts from Republican-leaning
to Democratic-leaning and some competitive districts to Democrat-leaning in his
effort to obtain a ten-year map.
{¶ 43} House Speaker Cupp and Springhetti similarly testified that before
the September 9 plan was introduced, they had some conversations about the
political leanings of certain House districts, but Springhetti had not yet analyzed—
and they had not discussed—the overall partisan makeup of the plan. After
September 9, Springhetti determined the number of seats favoring each political
party. House Speaker Cupp testified that after receiving the expected partisan
breakdown, he was surprised by the number of Republican-leaning House districts
and was concerned that it would be unacceptable to the Democratic commission
members. Out of 99 House districts, 67 leaned Republican.6
7. The Democratic caucuses also draw plans
{¶ 44} The Senate Democratic Caucus contracted with Project Govern—
owned by Christopher Glassburn—to provide redistricting services. The House
Democratic Caucus contracted with HaystaqDNA. According to Glassburn, very
few of HaystaqDNA’s suggestions were incorporated in the final maps proposed
by the Democratic caucuses. The Democratic caucuses’ maps were proposed to the
other commission members on August 31, September 1, September 13, and

6. Currently, the Ohio House of Representatives consists of 64 Republican members and 35

Democratic members. See Ohio House of Representatives, 134th General Assembly, available at
https://ohiohouse.gov/members/directory (accessed Dec. 21, 2021) [https://perma.cc/5ABV-TQ43].

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September 15. After the Democratic commission members proposed their initial
map, Secretary LaRose and Auditor Faber met with Glassburn and Democratic
staffers. Senator Yuko and Senator Sykes asked Glassburn to integrate as many of
Secretary LaRose’s and Auditor Faber’s requested changes as possible.
8. The commission members’ final negotiations
{¶ 45} Although accounts vary about the sincerity of the negotiations, most
commission members testified that between September 9 and 15, they met with
other members of the commission with the goal of compromising to adopt a ten-
year bipartisan map. The negotiations centered mostly around the acceptable
number of Democratic- and Republican-leaning seats in the House of
Representatives.
{¶ 46} All parties agreed that in statewide partisan elections over the past
decade, Republican candidates had won 54 percent of the vote share and
Democratic candidates had won 46 percent of the vote share. The Democrats’
August 31 proposed plan almost exactly mirrored those percentages, with 44 out of
99 House seats leaning Democratic and 55 out of 99 House seats leaning
Republican. By contrast, the Republicans’ proposed plan—which the commission
adopted as its proposed plan—predicted 32 Democratic-leaning House seats and 67
Republican-leaning House seats. The Sykeses’ September 13 proposal decreased
the number of Democratic-leaning House seats from their initial plan of 44 to 42
and increased the number of Republican-leaning House seats from 55 to 57.7
{¶ 47} At some point on September 14 or 15, House Speaker Cupp and
Senate President Huffman circulated a proposed amendment reducing the number
of Republican-leaning House seats from 67 to 62 and increasing the number of

7. The Sykeses also circulated a proposal on September 15, incorporating changes to certain district
lines suggested by Secretary LaRose and Auditor Faber. But the partisan percentage breakdown did
not change from the Sykeses’ September 13 proposed plan. The Sykeses’ September 15 proposal
was not formally submitted during a commission meeting.

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Democratic-leaning House seats from 32 to 37. According to House Speaker Cupp,

they were prepared to go even further, but the Sykeses stopped negotiating. Senate
President Huffman testified that they waited all day on September 15 for a
counteroffer, but Senator Sykes and House Minority Leader Sykes refused to
participate—even though Huffman’s amendment had moved closer to the
Democrats’ proposal.
{¶ 48} Secretary LaRose, Auditor Faber, and Governor DeWine testified
that in those final days, they attempted to mediate between the Republican and
Democratic legislative camps but eventually concluded that neither side would
budge from their positions. Secretary LaRose believed that the four legislative
leaders were the least open to compromise. Auditor Faber believed that some
commission members were posturing for litigation. He also testified that House
Minority Leader Sykes had essentially shut down the negotiations by the night of
September 14.
{¶ 49} For their part, both Senator Sykes and House Minority Leader Sykes
believed that they had already compromised by accepting less than the Democratic-
leaning proportion of the statewide voter share and that to agree to even fewer seats
might be contrary to Article XI, Section 6. Leader Sykes testified that Governor
DeWine had asked her if there was a specific number of seats that she would be
willing to vote for but that she told him that her goal was to comply with Article
XI, Section 6. Leader Sykes inquired whether Governor DeWine, Secretary
LaRose, and Auditor Faber would be willing to “break ranks” with the Republican
legislative leaders to join the Democratic commission members and adopt a ten-
year plan. Auditor Faber acknowledged that Leader Sykes had suggested that idea,
but he did not believe that such a deal was possible; he believed that the better
approach was for Senate President Huffman, House Speaker Cupp, Leader Sykes,
and Senator Sykes—the commission’s legislative-branch members—to
compromise.

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 January Term, 2022

{¶ 50} Senator Sykes was particularly frustrated with Secretary LaRose.

According to the senator, the secretary admitted that Senate President Huffman’s
plan was unfair but said that he would not vote against his Republican colleagues.
When the Sykeses realized that the statewide officeholders were unwilling to vote
contrary to the Republican legislative leaders, they saw no reason to continue
negotiating.
9. The Article XI, Section 8(C)(2) statement
{¶ 51} According to Senate President Huffman, when it became clear that
the commission likely would be passing a four-year map, someone on his staff—it
is unclear who—drafted the statement required under Article XI, Section 8(C)(2).
Regardless of who drafted the statement, Senate President Huffman acknowledged
that at some point, he suggested the idea of using the number of statewide elections
won by Republican candidates over the last ten years—i.e., the 81 percent figure—
as a way of determining the statewide preference of voters under Section 6(B). But
he stated that he did not know that this idea would be included in the Section 8(C)(2)
statement until the afternoon of September 15. Senate President Huffman also
testified that September 15 was when he first learned what percentages of seats
favoring each political party’s candidates would be included in the statement.
{¶ 52} Governor DeWine had no role in drafting the Section 8(C)(2)
statement and although he agreed with some of the statement’s rationale, he did not
believe that 81 percent was “any kind of mark that would indicate statewide
preferences.” But the governor voted for the statement because, he said, “it was the
rationale that had been put forward by [the] [R]epublican legislative leaders.”
Secretary LaRose did not see the statement until one minute before voting on it and
was not involved in drafting it. He voted in favor of the statement, he noted, merely
to accept it into the record—not because he agreed with it. In a text-message
exchange with his chief of staff before the vote, Secretary LaRose called the

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statement “asinine,” adding that it was the “second asinine thing I’m voting for
tonight.”
D. Legislative history of Issue 1
{¶ 53} In addition to evidence relating to the commission’s adoption of the
plan, the parties also included evidence relating to the passage of Issue 1, the 2015
ballot issue approving the amendment of Article XI of the Ohio Constitution. Many
of the current commission members were involved in that effort. Senate President
Huffman and Senator Sykes—while they were members of the House of
Representatives—sponsored the House joint resolution that placed the
constitutional amendment on the ballot. Auditor Faber and Secretary LaRose—
while they served as senators—were cosponsors in the Ohio Senate.
{¶ 54} During House debates, representatives stated that some portions of
the new constitutional language were mandatory and some were “aspirational.”
Then-Representative Huffman stated:

And so, again, the purpose of this is to clarify the rules.

There have been a variety of rules in the Constitution that were
unclear. * * *
So now we have a clear order of things that are mandatory.
We have other things that are aspirational in nature. And it’s really
the clarity in this, I think that will make sure that the majority must
follow these rules or, of course, suffer a variety of penalties.

Democratic Representative Kathleen Clyde, while urging other representatives to

vote in favor of the resolution, noted the concessions that the Democratic side of
the General Assembly had made. She said: “Another concession by our side is that
the fairness criteria are not required but are aspirational.”

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 January Term, 2022

{¶ 55} After the legislature placed the issue on the ballot, Senate President
Huffman and Senator Sykes formed Fair Districts for Ohio, an organization
supporting Issue 1. The organization issued literature, including a flyer stating that
the amendment would bring about the following reforms:

Fairness
 Protects against gerrymandering by prohibiting any district from
primarily favoring one political party.
 Requires districts to closely follow the statewide preferences of
the voters.
Accountable
 Creates a process for the Ohio Supreme court to order the
commission to redraw the map if the plan favors one political
party.

(Boldface and italics sic.) Although his name was on the flyer, Senate President
Huffman testified that he had no recollection of being involved with the
organization’s literature and that some portions were factually inaccurate. Senator
Sykes did not recall Senate President Huffman disputing the contents of the flyer
at the time.
{¶ 56} The official ballot language, appearing as Issue 1 on the 2015
statewide general-election ballot, stated the following:

Issue 1
Creates a bipartisan, public process for drawing
legislative districts
Proposed Constitutional Amendment
Proposed by Joint Resolution of the General Assembly

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To enact new Sections 1, 2, 3, 4, 5, 6, 7, 8, 9, and 10 of

Article XI and to repeal Sections 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12,
13, 14, and 15 of Article XI of the Constitution of the State of
Ohio.
***
The proposed amendment would:
End the partisan process for drawing Ohio House and Senate
districts, and replace it with a bipartisan process with the goal of
having district boundaries that are more compact and politically
competitive.
Ensure a transparent process by requiring public meetings,
public display of maps, and a public letter explaining any plan the
Commission adopts by a simple majority vote.
Establish the bipartisan Ohio Redistricting Commission,
composed of 7 members including the Governor, the Auditor of the
State, the Secretary of State, and 4 members appointed by the
majority and minority leaders of the General Assembly.
Require a bipartisan majority vote of 4 members in order to
adopt any final district plan, and prevent deadlock by limiting the
length of time any plan adopted without bipartisan support is
effective.

(Boldface sic.)
II. ANALYSIS
A. Threshold matters
{¶ 57} Before analyzing the validity of the General Assembly–district plan
under the Ohio Constitution, we address two threshold matters. First, the statewide
officeholders question whether they are proper parties in an action brought under

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 January Term, 2022

Article XI, Section 9 of the Ohio Constitution challenging the validity of a plan
adopted by the redistricting commission. And second, as ordered by this court, the
parties have submitted supplemental briefing on the question whether Article XI,
Section 8(C)(1) has any effect on this court’s authority to review a plan adopted by
a simple majority of the commission.
1. The statewide officeholders as proper parties
{¶ 58} Governor DeWine, Secretary LaRose, and Auditor Faber argue that
they should be dismissed from these cases because they are not proper parties. These
statewide officeholders contend that only the commission may be sued in cases
arising under Article XI because provisions within Article XI require the
commission—not its individual members—to adopt a district plan.8
{¶ 59} We addressed a similar issue in Wilson, 134 Ohio St.3d 221, 2012-
Ohio-5367, 981 N.E.2d 814. Under former Article XI, a group of five individuals—
referred to in Wilson as “the apportionment board”—were responsible for
establishing General Assembly districts. See former Article XI, Section 1, Ohio
Constitution (effective Nov. 7, 1967, to Jan. 1, 2021). The relators in Wilson had
named as the respondents only the four individual board members who had voted to
approve a new district plan. Wilson at ¶ 5, 7. The apportionment board itself and the
dissenting board member were not named as parties. Id.
{¶ 60} We held that the apportionment board and the dissenting board
member were not “necessary and indispensable” parties under Civ.R. 19. Id. at ¶ 10.
But we suggested that the board and all the board members were proper parties,
explaining that “it remains better practice in this type of action to name the board and
all its members as parties.” Id. We noted that former Article XI, Section 13 would
have required “the persons responsible for apportionment by a majority of their
number” to establish a new district plan if the existing plan were declared invalid. Id.

8. None of the legislative members of the commission argues that he or she is not a proper party to
these actions.

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 SUPREME COURT OF OHIO

{¶ 61} Wilson is instructive here, although the amendment of Article XI

changes which parties are necessary and which are merely proper. In Wilson, the
four individuals named as the respondents were necessary parties because a
declaration that the existing plan was invalid would have required a majority of those
responsible for apportionment to adopt a new plan. Id.; see also former Article XI,
Section 13, Ohio Constitution. Article XI, Section 9(B) now requires the
commission—not its individual members—to adopt a new district plan if this court
declares the existing plan invalid. Following the logic of Wilson, the current scheme
makes the commission the only necessary respondent, but the “better practice,”
Wilson at ¶ 10, is to name the commission’s members as respondents, too.
{¶ 62} This litigation demonstrates why the individual respondents are
proper parties. Although the commission is a respondent in these cases, its one-page
merit brief merely “adopts and incorporates” the statements and arguments that the
Republican commission members made in their briefs. And in its response to the
various discovery motions filed by petitioners, the commission represented to this
court that it “is not in possession, custody, or control of any document or any
information potentially responsive to discovery requests served in any of these
matters that is not in the possession, custody, and control of one or more of its
individual members.”
{¶ 63} We therefore hold that individual commission members are proper
parties in these cases. Therefore, we do not dismiss the statewide officeholders as
respondents.
2. Article XI, Section 8(C)(1)(a) does not bar this court’s review of the plan
{¶ 64} Article XI, Section 8(C)(1)(a) of the Ohio Constitution provides:

Except as otherwise provided in division (C)(1)(b) of this

section, if the commission adopts a final general assembly district

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 January Term, 2022

plan in accordance with division (A)(3) of this section9 by a simple

majority vote of the commission, and not by the vote required to
adopt a plan under division (B)(3) of Section 1 of this article, the
plan shall take effect upon filing with the secretary of state and shall
remain effective until two general elections for the house of
representatives have occurred under the plan.

{¶ 65} All the respondents acknowledged in their initial merit briefs that
this court has authority to invalidate a four-year district plan passed by a simple
majority vote under Section 8(C)(1)(a) and order the commission to adopt a new
plan. After oral argument in these cases, we ordered supplemental briefing on the
following issue: “What impact, if any, does Article XI, Section 8(C)(1) of the Ohio
Constitution have on the Supreme Court of Ohio’s authority to grant the relief
requested by relators when the Ohio Redistricting Commission adopted the district
plan by a simple majority vote of the commission?” See 165 Ohio St.3d 1476,
2021-Ohio-4381, 177 N.E.3d 986.
{¶ 66} In their supplemental brief, Senate President Huffman and House
Speaker Cupp argue that Article XI, Section 8(C)(1) “could” be reasonably
construed to divest this court of any authority to review a four-year plan passed
under Section 8(C)(1)(a). But they concede that other language in Section 9 could
be reasonably interpreted to authorize this court to review a four-year plan, albeit
in limited circumstances. The remaining respondents, along with all the petitioners,
argue that Section 8(C)(1) does not limit this court’s remedial authority to review a
four-year plan passed under Section 8(C)(1)(a).

9. One could argue that the district plan was not adopted “in accordance with division (A)(3)” of
Article XI, Section 8, because division (A)(3) requires that any Section 8(C)(1)(a) plan be adopted
“not later than the fifteenth day of September of a year ending in the numeral one.” As noted above,
the plan was adopted on September 16, 2021.

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 SUPREME COURT OF OHIO

{¶ 67} The second dissenting opinion seizes on the argument raised by

Senate President Huffman and House Speaker Cupp that this court could conclude
that it may not review the district plan, because Article XI, Section 8(C)(1)(a) does
not state that a four-year plan adopted under that section shall remain effective
“except as provided in Section 9 of this article.” In contrast, the “except as provided
in Section 9” language is included in Sections 8(B) and 8(C)(1)(b), which relate to
ten- and six-year plans adopted by the commission, respectively. The second
dissenting opinion concludes that the absence of a cross-reference to Section 9 in
Section 8(C)(1)(a) means that four-year plans are insulated from this court’s
review.
{¶ 68} The second dissenting opinion’s interpretation, however, requires
readers of Article XI to ignore certain parts of it. We must read Article XI as a
whole. See State v. Porterfield, 106 Ohio St.3d 5, 2005-Ohio-3095, 829 N.E.2d
690, ¶ 12. And several features of Article XI cut against the second dissenting
opinion’s conclusion that we lack authority to review a four-year plan adopted
under Section 8(C)(1)(a).
{¶ 69} For starters, Article XI, Section 8 does not address this court’s
authority to order remedies. Section 9 addresses that topic. Section 9(A) confers
on this court “exclusive, original jurisdiction in all cases arising under” Article XI
of the Ohio Constitution, and Section 9(B) refers to this court’s authority to
invalidate “any general assembly district plan made by the Ohio redistricting
commission.” (Emphasis added.) Section 8(C)(1)(a) does not expressly remove
this court’s authority to consider the validity of “any” plan that the commission
adopts. And if this court determines that a General Assembly–district plan or “any
district” within the plan is invalid, then “notwithstanding any other provisions of
this constitution,” the commission must be reconstituted as provided in Article XI,
Section 1 to adopt a new plan “to be used until the next time for redistricting”
occurs. (Emphasis added.) Ohio Constitution, Article XI, Section 9(B).

26
 January Term, 2022

{¶ 70} The term “notwithstanding” means “ ‘without prevention or

obstruction from or by; in spite of.’ ” State ex rel. Carmean v. Hardin County Bd.
of Edn., 170 Ohio St. 415, 422, 165 N.E.2d 918 (1960), quoting Webster’s Second
New International Dictionary 1669 (1954). Provisions included in a clause
invoking that term override any conflicting provisions. See Ohio Neighborhood
Fin., Inc. v. Scott, 139 Ohio St.3d 536, 2014-Ohio-2440, 13 N.E.3d 1115, ¶ 35.
Thus, Article XI, Section 9(B) overrides other sections of Article XI that “could”
be construed as conflicting with this court’s remedial authority under that section,
despite both dissenting opinions’ protestations to the contrary.
{¶ 71} Second, Article XI, Section 8(C)(1)(a) must be read together with
Section 9(D)(3)(c), which refers to this court’s “considering a plan adopted under
division (C) of Section 8 of this article” and speaks to remedies that this court “shall
order” if it determines that such a plan violates the provisions specified in Section
9(D)(3)(c). (Emphasis added). Section 9(D)(3)(c) thus contemplates judicial
review of four-year plans. Indeed, the statewide-officeholder respondents point to
Section 9(D)(3) as the reason that we “should not read Section 8(C)(1) as an
absolute barrier to judicial relief against a four-year map.” To do so would run
afoul of our duty to construe the Ohio Constitution in a manner that makes it
internally consistent and gives effect to all of its provisions. See Smith v. Leis, 106
Ohio St.3d 309, 2005-Ohio-5125, 835 N.E.2d 5, ¶ 59.
{¶ 72} Third, even if the second dissenting opinion were correct that a
conflict exists between Article XI, Section 8(C)(1) and Section 9, the latter section
prevails: Section 9 more specifically addresses this court’s jurisdiction and
remedial authority. See MacDonald v. Cleveland Income Tax Bd. of Review, 151
Ohio St.3d 114, 2017-Ohio-7798, 86 N.E.3d 314, ¶ 27 (“when there is a conflict
between a general provision and a more specific provision in a statute, the specific
provision controls”). The second dissenting opinion seizes on this canon of
construction, contending that Section 8(C)(1)(a) is the specific provision applicable

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to four-year plans while Section 9 is a general provision applicable to our

jurisdictional and remedial authority. But the second dissenting opinion misapplies
the canon: Section 9 is the specific provision, because it governs this court’s
jurisdictional and remedial authority while Section 8(C) governs a different matter,
namely, the duration of a district plan.
{¶ 73} Moreover, Article XI, Section 9(D)(3)(c) specifically contemplates
review of a plan adopted under Section 8(C), so it cannot be the case that voters (or
the General Assembly) intended to foreclose review of plans adopted under Section
8(C)(1)(a). The axiom that one does not “hide elephants in mouseholes” is apt here.
See Whitman v. Am. Trucking Assns., 531 U.S. 457, 468, 121 S.Ct. 903, 149 L.E.2d
1 (2001). That is, the omission of the phrase “except as provided in Section 9” in
a section concerning a four-year plan’s duration is not a logical way to curtail this
court’s jurisdiction granted under Section 9. If it had been intended that this court
not have jurisdiction to review a four-year plan, it would have been more logical
for that limitation to appear in Section 9, the section that specifically deals with this
court’s jurisdiction and remedial authority. It is little wonder, then, that until we
ordered supplemental briefing, none of the parties took the position that Section
8(C)(1)(a) forecloses judicial review of a four-year plan’s validity. (And even then,
only one set of respondents has made that argument—and in equivocal fashion at
that.)
{¶ 74} Finally, it is difficult to overlook the absurd result that would arise
from the second dissenting opinion’s interpretation of Article XI, Section
8(C)(1)(a) as a limitation on this court’s jurisdiction. It would mean that a four-
year plan could violate any of Article XI’s requirements (e.g., by drawing
multimember districts or noncontiguous districts or by violating any of the other
neutral map-drawing requirements) and still not be subject to a court challenge.
Further, as the second dissenting opinion notes, Article XI, Section 1(C) provides
for the commission’s adoption of a ten-year plan by September 1 (i.e., before the

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 January Term, 2022

impasse procedures are triggered under Section 8), but like Section 8(C)(1)(a),
Section 1(C) does not include the limiting phrase “except as provided in Section 9
of this article.” The second dissenting opinion embraces the notion that a plan
passed with bipartisan support under Section 1(C) would not be reviewable either,
regardless of any defects that run afoul of Article XI’s requirements. That is, a ten-
year plan adopted with bipartisan support by September 1 would not be subject to
judicial review, but a ten-year plan adopted with bipartisan support by September
15 would be reviewable—a result with no plausible justification. Likewise, there
is no reason why a four-year plan passed by a partisan majority under Section
8(C)(1)(a) should escape judicial review while a plan that replaces it for the
remaining six years under Section 8(C)(1)(b)—perhaps even the same plan passed
again by a partisan majority—could be reviewed.
{¶ 75} For these reasons, we hold that this court has authority under Article
XI, Section 9 to review a four-year district plan passed by the commission under
Article XI, Section 8(C)(1)(a).
B. The burden and standard of proof
{¶ 76} In Wilson, 134 Ohio St.3d 221, 2012-Ohio-5367, 981 N.E.2d 814, at
¶ 18-24, we noted that apportionment is a legislative task and that an adopted
apportionment plan—like enacted legislation—is presumptively constitutional.
We therefore held that “[t]he burden of proof on one challenging the constitutionality
of an apportionment plan is to establish that the plan is unconstitutional beyond a
reasonable doubt. In the absence of evidence to the contrary, we presume that the
apportionment board properly performed its duties in a lawful manner.” Id. at
paragraph two of the syllabus.
{¶ 77} Several distinct concepts are embedded within that holding.
Fundamentally, the standard allocates the burden of proof, which itself “is a
composite burden that ‘encompasses two different aspects of proof: the burden of
going forward with evidence (or burden of production) and the burden of

29
 SUPREME COURT OF OHIO

persuasion.’ ” Welsh-Huggins v. Jefferson Cty. Prosecutor’s Office, 163 Ohio St.3d

337, 2020-Ohio-5371, 170 N.E.3d 768, ¶ 20, quoting Chari v. Vore, 91 Ohio St.3d
323, 326, 744 N.E.2d 763 (2001). The standard also defines the burden of proof for
factual issues as beyond a reasonable doubt.
{¶ 78} Petitioners argue that they should not be required to prove factual
issues beyond a reasonable doubt, because these cases arise under the original
jurisdiction of this court and the rule in ordinary civil cases is that facts must be
proved by a preponderance of the evidence. But these are not ordinary civil cases.
When legislative action is the subject of a facial constitutional challenge, it is well
settled that the challenging party faces “the highest standard of proof, which is also
used in criminal cases, proof beyond a reasonable doubt,” State ex rel. Ohio
Congress of Parents & Teachers v. State Bd. of Edn., 111 Ohio St.3d 568, 2006-
Ohio-5512, 857 N.E.2d 1148, ¶ 21.
{¶ 79} Petitioners dispute the premise that these cases should be treated as
facial constitutional challenges. But in doing so, petitioners do not attack the
primary reasons for the Wilson court’s holding—i.e., that apportionment is a
legislative task (albeit now delegated by the Ohio Constitution to the redistricting
commission) and that the public officers are presumed to have properly carried out
their duties. See Wilson, 134 Ohio St.3d 221, 2012-Ohio-5367, 981 N.E.2d 814, at
¶ 20-21. Petitioners therefore must prove factual issues beyond a reasonable doubt.
{¶ 80} Application of this standard of proof on factual issues does not
prevent us from independently assessing the constitutionality of the commission’s
plan. In emphasizing the “strong presumption of constitutionality” of legislation,
we typically invoke the rule that “a statute will be upheld unless proven beyond a
reasonable doubt to be unconstitutional.” State v. Romage, 138 Ohio St.3d 390,
2014-Ohio-783, 7 N.E.3d 1156, ¶ 7. This rule borrows terminology usually
associated with the proof of facts, referring to the quantum of evidence needed to
convict a defendant in a criminal case. But the ultimate question here remains a

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 January Term, 2022

legal one: does the commission’s adoption of its plan “ ‘clear[ly] and
irreconcilabl[y] conflict with some express provision of the constitution’ ”? Ohio
Congress of Parents & Teachers at ¶ 20, quoting Spivey v. Ohio, 999 F.Supp. 987,
999 (N.D.Ohio 1998). Petitioners express concern that we will consider that
question with a rubber-stamp form of review, but that concern is misplaced. And
contrary to the suggestion of Senate President Huffman and House Speaker Cupp,
the presumption and high burden of proof do not require us to defer to the
commission’s interpretation of Article XI. The presumption of constitutionality
and the application of a high standard of proof do not prevent this court from
“say[ing] what the law is,” Marbury v. Madison, 5 U.S. 137, 177, 2 L.Ed. 60 (1803),
or from “conduct[ing] an independent review,” Ohio Congress of Parents &
Teachers at ¶ 20.
C. Article XI, Section 6
{¶ 81} Petitioners in all three cases argue that the adopted plan is invalid
because it fails to comply with Article XI, Section 6 of the Ohio Constitution.
Petitioners contend that the adopted plan was drawn primarily to favor the majority
party of the General Assembly and disfavor the minority party, in violation of Article
XI, Section 6(A), and that the proportional political leaning of the districts within the
plan does not correspond closely to the statewide preferences of Ohio voters, in
violation of Article XI, Section 6(B). Petitioners argue that the commission did not
even attempt to comply with Sections 6(A) and 6(B) despite the mandatory language
in Section 6 stating that it must do so.
{¶ 82} Senate President Huffman, House Speaker Cupp, and the statewide
officeholders respond to petitioners’ challenge to the adopted plan with three
arguments. They first argue that Article XI, Section 6 is not mandatory but merely
“aspirational.” They next argue that a district plan may not be challenged based
solely on an alleged violation of Section 6, because the remedies provided in Article
XI, Section 9(D)(3) require a predicate violation of Section 2, 3, 4, 5, or 7 before

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this court may evaluate compliance with Section 6. And finally, they argue that
they attempted to comply with Section 6 by negotiating with Senator Sykes and
House Minority Leader Sykes to try to adopt a ten-year bipartisan plan.
{¶ 83} As explained below, the evidence—much of which is undisputed—
shows that the commission did not attempt to comply with the standards stated in
Article XI, Section 6(A) or 6(B). Moreover, respondents’ arguments are
unpersuasive. Section 6 imposes enforceable duties on the commission. And the
inclusion of specific remedies in Section 9(D)(3) if a plan fails to comply with other
sections does not preclude us from declaring a plan invalid if it fails to comply with
Section 6.
1. Article XI, Section 6 requires an attempt
{¶ 84} When interpreting constitutional language, we generally apply the
same rules of construction that govern the interpretation of statutes. See Toledo
City School Dist. Bd. of Edn. v. State Bd. of Edn., 146 Ohio St.3d 356, 2016-Ohio-
2806, 56 N.E.3d 950, ¶ 16. We must begin by looking at the language of the
provision itself. Id. We consider “how the words and phrases would be understood
by the voters in their normal and ordinary usage.” Centerville v. Knab, 162 Ohio
St.3d 623, 2020-Ohio-5219, 166 N.E.3d 1167, ¶ 22, citing Dist. of Columbia v.
Heller, 554 U.S. 570, 576-577, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008). In other
words, “[i]n construing constitutional text that was ratified by direct vote, we
consider how the language would have been understood by the voters who adopted
the amendment.” Knab at ¶ 22.
{¶ 85} The opening sentence of Section 6 states that the commission “shall
attempt” to draw a district plan that complies with the standards set forth in
divisions (A) through (C) of that section. Ohio Constitution, Article XI, Section 6.
We have interpreted similar language as imposing mandatory obligations. In State
ex rel. Republic Steel Corp. v. Ohio Civ. Rights Comm., 44 Ohio St.2d 178, 339
N.E.2d 658 (1975), this court interpreted a former version of R.C. 4112.05(B),

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 January Term, 2022

which stated that the Ohio Civil Rights Commission, after finding that an unlawful
discriminatory practice had occurred, “shall endeavor to eliminate such practices
by informal methods of conference, conciliation, and persuasion.” Am.Sub.H.B.
No. 610, 135 Ohio Laws, Part I, 1884, 1892. We held that this language required
“a completed and unsuccessful attempt by the Ohio Civil Rights Commission to
eliminate unlawful discriminatory practices by conference, conciliation, or
persuasion” as “a jurisdictional prerequisite” to the commission’s issuance of a
complaint. Republic Steel at syllabus. In other words, we determined that the
phrase “[s]hall endeavor” was mandatory language: it required the Ohio Civil
Rights Commission to exhaust other means of eliminating an unlawful practice
before it could initiate legal proceedings. Id. at 184.
{¶ 86} The phrase” in Article XI, Section 6 also has a plain meaning: it
directs the commission to take affirmative steps to comply with the standards stated
in divisions (A) through (C). See State ex rel. Cincinnati Enquirer v. Lyons, 140
Ohio St.3d 7, 2014-Ohio-2354, 14 N.E.3d 989, ¶ 28 (“We have repeatedly
recognized that use of the term ‘shall’ in a statute or rule connotes a mandatory
obligation unless other language evidences a clear and unequivocal intent to the
contrary”); Webster’s Third New International Dictionary 140 (2002) (“attempt”
means “to make an effort to do, accomplish, solve, or effect”). Thus, when drawing
a district plan, the commission must attempt to meet the standards set forth in
Section 6.
{¶ 87} This of course raises the question: What constitutes an “attempt” to
meet the standards provided in Article XI, Section 6(A) through 6(C)? And could
the commission comply with Section 6 without achieving a plan that meets that
section’s standards?
{¶ 88} The final sentence of Article XI, Section 6 provides the answer. It
states, “Nothing in this section permits the commission to violate the district
standards described in Section 2, 3, 4, 5, or 7 of this article.” This sentence

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acknowledges that there might be circumstances that make it impossible for the
commission to meet the standards of Section 6 while also following the map-
drawing requirements of Sections 2, 3, 4, 5, and 7. Read together, the first and last
sentences of Section 6 clarify that the standards of Section 6 are subordinate to the
map-drawing requirements in Sections 2, 3, 4, 5, and 7. If it is possible for a district
plan to comply with Section 6 and Sections 2, 3, 4, 5, and 7, the commission must
adopt a plan that does so.10
{¶ 89} Senate President Huffman and House Speaker Cupp make much of
the legislative debate that preceded the amendment of Article XI. They point to a
statement made by Democratic Representative Kathleen Clyde, who advocated for
the constitutional amendment during a legislative debate, that described the criteria
in Article XI, Section 6 as “aspirational.” Senate President Huffman, who was then
a House member, agreed with that characterization during the debate, stating that
there is “a clear order of things that are mandatory [and] other things that are
aspirational in nature.” Senate President Huffman and House Speaker Cupp argue
that this confirms that the fairness criteria in Sections 6(A) and 6(B) are aspirational.
{¶ 90} But legislative debate does not inform a proper reading of Article
XI, Section 6. For one thing, views of individual legislators do not determine what
a provision means. See State v. Toney, 81 Ohio St. 130, 140, 90 N.E. 142 (1909)
(“the enactment receives its vigor and force as law by reason of its enactment by
the general assembly, no matter from what source the inspiration came”); see also
Nichols v. Villareal, 113 Ohio App.3d 343, 349, 680 N.E.2d 1259 (4th Dist.1996)

10. The first dissenting opinion accuses us of ignoring the “attempt” language in Section 6 and
rewriting the provision to mean: “The Ohio redistricting commission shall, attempt to if it is possible,
F.” Dissenting opinion of Kennedy, J., at ¶ 248. We are doing no such thing. Rather, we are giving
effect to both (1) the “shall attempt” language in the beginning of Section 6 and (2) the expression
in the final sentence of Section 6 that those provisions are subordinate to Sections 2, 3, 4, 5, and 7.
The latter gives meaning to the former. The attempt to comply with Section 6 might be unsuccessful
if to do so would run afoul of Section 2, 3, 4, 5, or 7.

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 January Term, 2022

(courts “must determine the intent of the Ohio General Assembly not from the
expressions of a single legislator, but from the expression of the legislative body as
a whole”). But more importantly, we will not use legislative debate “to muddy
clear statutory language.” Milner v. Dept. of the Navy, 562 U.S. 562, 572, 131 S.Ct.
1259, 179 L.Ed.2d 268 (2011). And here, clear language in Section 6 establishes
that the section’s standards are not merely aspirational. “Aspirational” denotes a
desire to achieve something. See Webster’s Third New International Dictionary at
130 (defining “aspirational” as “of relating to aspiration,” which itself is defined as
“a strong desire for realization,” id.). Section 6 speaks not of desire but of direction:
the commission shall attempt to achieve the standards of that section. While
Section 6 contemplates that the standards set forth in it may not come to fruition, it
nevertheless requires the commission to try to achieve them.
2. Article XI, Section 6 claims are actionable
{¶ 91} Senate President Huffman, House Speaker Cupp, and the statewide
officeholders also argue that the claims based on Section 6 must be dismissed
because Article XI does not provide a specific remedy for the commission’s failure
to comply with Section 6. They focus on Section 9(D)(3), which prescribes the
scope of this court’s remedial power for certain violations of Article XI:

If the supreme court of Ohio determines that a general

assembly district plan adopted by the commission does not comply
with the requirements of Section 2, 3, 4, 5, or 7 of this article, the
available remedies shall be as follows:
(a) If the court finds that the plan contains one or more
isolated violations of those requirements, the court shall order the
commission to amend the plan to correct the violation.
(b) If the court finds that it is necessary to amend not fewer
than six house of representatives districts to correct violations of

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those requirements, to amend not fewer than two senate districts to

correct violations of those requirements, or both, the court shall
declare the plan invalid and shall order the commission to adopt a
new general assembly district plan in accordance with this article.
(c) If, in considering a plan adopted under division (C) of
Section 8 of this article, the court determines that both of the
following are true, the court shall order the commission to adopt a
new general assembly district plan in accordance with this article:
(i) The plan significantly violates those requirements in a
manner that materially affects the ability of the plan to contain
districts whose voters favor political parties in an overall proportion
that corresponds closely to the statewide political party preferences
of the voters of Ohio, as described in division (B) of Section 6 of
this article.
(ii) The statewide proportion of districts in the plan whose
voters, based on statewide state and federal partisan general election
results during the last ten years, favor each political party does not
correspond closely to the statewide preferences of the voters of
Ohio.

(Emphasis added.)
{¶ 92} Senate President Huffman, House Speaker Cupp, and the statewide
officeholders argue that Article XI, Section 9(D)(3) limits our jurisdiction and
remedial power by permitting us to invalidate a plan only when the plan violates
Section 2, 3, 4, 5, or 7. Section 6, they contend, comes into play only if we are
reviewing a four-year plan adopted under Section 8(C). And they argue that even
then, we may review only whether the plan complies with Section 6(B)—and still
only if there was a predicate violation of Section 2, 3, 4, 5, or 7. Thus, they contend

36
 January Term, 2022

that Article XI does not allow this court to invalidate a plan when the challengers
allege only a failure to comply with Section 6.
{¶ 93} This argument misunderstands the scope of our jurisdiction and
general remedial power under Article XI, Section 9. Section 9(A) grants this court
“exclusive, original jurisdiction” in all cases arising under Article XI. This broad
grant of jurisdiction is not limited to claims alleging violations of certain sections
of Article XI. Indeed, Section 9(B) identifies the general remedy that is available
when this court determines that a district plan is invalid:

In the event that any section of this constitution relating to

redistricting, any general assembly district plan made by the Ohio
redistricting commission, or any district is determined to be invalid
by an unappealed final order of a court of competent jurisdiction
then, notwithstanding any other provisions of this constitution, the
commission shall be reconstituted as provided in Section 1 of this
article, convene, and ascertain and determine a general assembly
district plan in conformity with such provisions of this constitution
as are then valid, including establishing terms of office and election
of members of the general assembly from districts designated in the
plan, to be used until the next time for redistricting under this article
in conformity with such provisions of this constitution as are then
valid.

(Emphasis added.) Section 9(B) contemplates that this court may declare a district
plan invalid in the exercise of Section 9(A) jurisdiction.
{¶ 94} Because neither Section 9(A) nor Section 9(B) limits the bases on
which this court may declare a plan invalid, Section 9(A) allows review of a district
plan for compliance with any provision in Article XI, including Section 6. This

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conclusion—which gives meaning to the mandatory language in Section 6—is

consistent with the settled principles that no part of the Constitution “should be
treated as superfluous unless that is manifestly required” and that we should avoid
any construction that makes a provision “meaningless or inoperative,” State ex rel.
Myers v. Spencer Twp. Rural School Dist. Bd. of Edn., 95 Ohio St. 367, 373, 116
N.E. 516 (1917).
{¶ 95} We further reject the notion that Article XI, Section 9(D)(3) is a
specific remedial provision that precludes us from invoking Section 9(B) to declare
a plan invalid for failure to comply with Section 6. “Where provisions of the
Constitution address the same subject matter, they must be read in pari materia and
harmonized if possible.” Toledo Edison Co. v. Bryan, 90 Ohio St.3d 288, 292, 737
N.E.2d 529 (2000). That is, when possible, we must construe constitutional
provisions to give each provision reasonable and operable effect. State ex rel.
Toledo v. Lucas Cty. Bd. of Elections, 95 Ohio St.3d 73, 78, 765 N.E.2d 854 (2002).
{¶ 96} It is not difficult to harmonize Section 9(B) and Section 9(D)(3).
Section 9(B) contemplates that this court may declare a plan invalid and order the
commission to adopt an entirely new plan. Section 9(D)(3) speaks to certain
violations of Article XI and gives this court remedial options other than declaring
a plan entirely invalid. According to Section 9(D)(3)(a) and (b), we do not have to
declare a plan entirely invalid if violations of Section 2, 3, 4, 5 or 7 are isolated or
would require amendments regarding relatively few districts.11 And for a four-year

11. The first dissenting opinion argues that we mischaracterize Section 9(D)(3) and that under our
“reading of these provisions, Section 9(B) adds nothing to the remedies afforded by Section
9(D)(3).” Dissenting opinion of Kennedy, J., at ¶ 229. It is that opinion, however, that
mischaracterizes Section 9. Section 9(A) grants this court jurisdiction over all cases arising under
Article XI. In the exercise of that jurisdiction, Section 9(B) authorizes the court to declare a plan
invalid. Section 9(D)(3) begins with the phrase, “If the supreme court of Ohio determines that a
general assembly district plan adopted by the commission does not comply with the requirements
of Section 2, 3, 4, 5, or 7 of this article, the available remedies shall be as follows.” Ohio
Constitution, Article XI, Section 9(D)(3). Section 9(D)(3) therefore instructs us to take specific
courses of action in the event that we find a violation of Section 2, 3, 4, 5, or 7. Section 9(D)(3)

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 January Term, 2022

plan that might not otherwise be declared invalid under Section 9(D)(3)(a) or (b),
this court may still order the commission to adopt a new plan if the adopted plan
violates Section 2, 3, 4, 5, or 7 in a manner that causes it to run afoul of the partisan-
proportionality standard set forth in Section 6(B). Ohio Constitution, Article XI,
Section 9(D)(3)(c). Section 9(D)(3) covers these specific circumstances. It says
nothing of this court’s authority to examine whether the commission has complied
with some other section of Article XI or of what remedy this court may provide if
it determines that a plan is invalid for violating another section.
{¶ 97} Further, the language and structure of former Article XI cut against
the reading of Article XI, Section 9(D)(3) proposed by Senate President Huffman,
House Speaker Cupp, and the statewide officeholders. Much of the language of
Sections 9(A) and 9(B) was imported from former Article XI, Section 13.12 Before
Article XI was amended, former Section 13 was the only provision that referred to
this court’s jurisdiction and remedial power in apportionment cases. In Wilson, this
court never suggested that Article XI did not authorize it to declare a plan invalid
or to order an appropriate remedy. See 134 Ohio St.3d 221, 2012-Ohio-5367, 981

limits our otherwise broad authority to invalidate plans. Importantly, that limitation does not apply
here, because no violation of Section 2, 3, 4, 5, or 7 has been alleged or found.

12. Former Article XI, Section 13, Ohio Constitution (effective Nov. 7, 1967, to Jan. 1, 2021),
provided:

The supreme court of Ohio shall have exclusive, original jurisdiction in

all cases arising under this Article. In the event that any section of this
Constitution relating to apportionment or any plan of apportionment made by the
persons responsible for apportionment, by a majority of their number, is
determined to be invalid by either the supreme court of Ohio, or the supreme court
of the United States, then notwithstanding any other provisions of this
Constitution, the persons responsible for apportionment by a majority of their
number shall ascertain and determine a plan of apportionment in conformity with
such provisions of this Constitution as are then valid, including establishing terms
of office and election of members of the general assembly from districts
designated in the plan, to be used until the next regular apportionment in
conformity with such provisions of this Constitution as are then valid.

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 SUPREME COURT OF OHIO

N.E.2d 814, at ¶ 10. Section 9(A) gives this court jurisdiction, and Section 9(B)
provides for a remedy, just as former Section 13 did. The fact that Section 9(D)
provides specific remedies for some violations of Article XI does not remove this
court’s remedial power to declare a plan invalid for violations not specified there.
Were this court’s remedial power limited in such a fashion, Section 9 would have
spelled it out expressly, as it did in Section 9(D)(1) and (2), which expressly state
what this court shall not do.
{¶ 98} Article XI, Section 9(B) recognizes this court’s authority to
determine whether a plan is invalid for any reason and specifies what must happen
if it does. This general power to invalidate a plan is limited by Section 9(D)(3) but
only as to violations of Section 2, 3, 4, 5, or 7. Section 9(D)(3) does nothing more.
{¶ 99} The first dissenting opinion argues that Article XI contains no
specific enforcement mechanism for Section 6 and that Section 6 therefore is
merely a direction to the commission’s members that they are “duty bound to
comply with,” dissenting opinion of Kennedy, J., at ¶ 240, not a mandate that can
be enforced by this court. However, as just explained, Article XI does contain a
mechanism for enforcing compliance with Section 6. Moreover, in support of its
argument that this court cannot enforce compliance with the section, the first
dissenting opinion relies on In re Nowak, 104 Ohio St.3d 466, 2004-Ohio-6777,
820 N.E.2d 335, ¶ 37-38—a case that undermines the dissent’s own argument. In
Nowak, we held that manifestly gross and fraudulent violations of the “one subject”
rule in Article II, Section 15(D) of the Ohio Constitution can be enforced in a court
of law and that because the provision was capable of invalidating an enactment, it
was not directory in nature. Nowak at paragraph one of the syllabus. Similarly,
here, Senate President Huffman, House Speaker Cupp, and the first dissenting
opinion all concede that a redistricting plan can be invalidated under Section 6(B)
in some circumstances—specifically, they allow that a violation of Section 6(B) is
actionable if there is also a violation of Section 2, 3, 4, 5, or 7. Accordingly, under

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 January Term, 2022

Nowak—and even setting aside the application of Article XI, Sections 9(A) and
9(B)—Section 6 is not merely directory.
{¶ 100} Despite Article XI, Sections 9(A) and 9(B)’s clear grant of
authority to review and invalidate a redistricting plan, both dissenting opinions
suggest that there is no judicial remedy for a violation of Section 6. The second
dissenting opinion goes so far as to assert that if the commission adopts a plan
contrary to the anti-gerrymandering provisions that Ohio voters included in the
revised Article XI, Ohio voters must continue to live with the gerrymandered
districts unless and until the statewide electorate replaces the governor, secretary of
state, or auditor of state at the ballot box or the voters in the home districts of the
commission’s legislative members choose to replace those members.
{¶ 101} The suggestion that the solution to unconstitutional partisan
gerrymandering is simply to vote out its perpetrators is disingenuous. Partisan
gerrymandering entrenches the party in power. See, e.g., Gill v. Whitford, ___ U.S.
___, ___, 138 S.Ct. 1916, 1935, 201 L.Ed.2d 313 (2018) (Kagan, J., concurring).
If the legislative members of the commission that adopted the instant plan are voted
out of office, the party that appointed them will simply appoint different partisans.
And common sense dictates that notwithstanding attrition based on term limits or
any other reasons, the officeholders will stand for reelection primarily on the basis
of their performance in those offices, not as members of the redistricting
commission. The notion that the voters who overwhelmingly approved the
amendment of Article XI meant to hinge the eradication of partisan gerrymandering
on the election of various officeholders simply holds no water. This is so
particularly in light of the fact that Fair Districts for Ohio—the organization formed
by the amendment’s sponsors, including Senate President Huffman—told Ohio
voters that Article XI would “[p]rotec[t] against gerrymandering,” “[r]equir[e]
districts to closely follow the statewide preferences of voters,” and “[c]reat[e] a
process for the Ohio Supreme Court to order the commission to redraw the map if

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the plan favors one political party.” (Emphasis added.) Similarly, the official ballot
language informed voters that the amendment would “[e]nd the partisan process for
drawing Ohio House and Senate districts,” yet the dissenting opinions would make
the process partisan again by requiring voters to change the party controlling the
majority of seats on the commission in order to effect any real change. We reject
the notion that Ohio voters rallied so strongly behind an anti-gerrymandering
amendment to the Ohio Constitution yet believed at the time that the amendment
was toothless. As explained above, that conclusion is not supported by the plain
text of Article XI. It is also supported neither by the information given to voters in
2015 nor by common sense.
3. The commission did not attempt to meet the standard set forth in
Article XI, Section 6(B)
{¶ 102} Petitioners have shown beyond a reasonable doubt that the
commission did not attempt to draw a district plan that meets the standard
articulated in Article XI, Section 6(B). Undisputed evidence shows not only that
the individuals who drew the plan did not try to comply with the Section 6(B)
standard but also that they did not have the right target in mind.
{¶ 103} To start, funding for redistricting was allocated only to the
legislative caucuses involved, and the commission members from the executive
branch were not given access to the mapping programs that would have allowed
them to meaningfully participate in the drawing of the maps. Even under this
arrangement, only two commission members—Senate President Huffman and
House Speaker Cupp—were involved when the plan that was ultimately adopted
was drawn. Thus, the commission did not demonstrate a correct understanding of
what was required in drawing the maps.
{¶ 104} As to the specific requirement of Section 6(B), the commission
must attempt to draw a plan that corresponds to the statewide preferences of Ohio
voters: “The statewide proportion of districts whose voters, based on statewide state

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 January Term, 2022

and federal partisan general election results during the last ten years, favor each
political party shall correspond closely to the statewide preferences of the voters of
Ohio.” Ohio Constitution, Article XI, Section 6(B).
{¶ 105} This standard requires the calculation—and then the comparison—
of two things. The commission must first calculate the statewide proportion of
districts whose voters favor each political party. In making this calculation, the
commission must determine how voters in the proposed districts are likely to vote
in future elections by examining the statewide federal and state partisan election
results from the previous ten years. The evidence submitted shows that map-
drawing software performed this calculation for the map drawers recruited by the
Republican legislative members of the commission. The commission
acknowledged in its Article XI, Section 8(C)(2) statement that 64.4 percent of all
districts in the adopted plan favored Republican candidates during the specified
period. Depending on the measures used, Senate President Huffman and House
Speaker Cupp’s expert concluded, the number of districts in the plan favoring
Republican House seats is between 61 and 68 percent.
{¶ 106} The second calculation that must be made by the commission is the
statewide preferences of the voters of Ohio. Senate President Huffman and House
Speaker Cupp argue that one way to determine statewide voter preferences is to
calculate the percentage of statewide partisan races won by candidates from each
party during the last ten years. That method leads to the conclusion that 81 percent
of Ohio voters prefer Republican candidates, because Republican candidates won
13 of 16 statewide partisan contests during the last ten years. Using this approach
in conjunction with a measure of the proportional number of votes cast for each
party in those elections, Senate President Huffman and House Speaker Cupp assert
that the proportion of Ohio voters favoring Republican candidates is between 54
and 81 percent. This is the methodology that the commission adopted in its Article
XI, Section 8(C)(2) statement.

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 SUPREME COURT OF OHIO

{¶ 107} This methodology, however, does not tell us the “statewide

preferences of the voters of Ohio.” Calculating the percentage of statewide election
victories over the last ten years does not indicate the preferences of individual Ohio
voters. The “statewide preferences of the voters of Ohio” must be determined by
examining how the voters voted—i.e., by totaling the votes cast in statewide
partisan elections and calculating the percentages of votes received by candidates
of each political party. Senate President Huffman and House Speaker Cupp’s
approach looks not to votes cast but to statewide offices won, which is a measure
that does not comport with Article XI, Section 6(B).
{¶ 108} As used in Article XI, Section 6(B) of the Ohio Constitution, the
term “statewide preferences of the voters of Ohio” means the percentages of votes
received by the candidates of each political party based on the total votes cast in
statewide state and federal partisan elections during the preceding ten years. In this
case, there is no dispute that under this methodology, which looks at votes cast in
statewide elections over the relevant period, about 54 percent of Ohio voters
preferred Republican candidates and about 46 percent of Ohio voters preferred
Democratic candidates. Accordingly, under Section 6(B), the commission is
required to attempt to draw a plan in which the statewide proportion of Republican-
leaning districts to Democratic-leaning districts closely corresponds to those
percentages.
{¶ 109} The misunderstanding of what Article XI, Section 6(B) requires, as
expressed in the commission’s Section 8(C)(2) statement, demonstrates that the
commission did not attempt to comply with the standard set forth in that section. But
even if Senate President Huffman and House Speaker Cupp had had the right target
in mind, the evidence shows that they never asked the principal map drawers—
DiRossi and Springhetti—to try to comply with Section 6. DiRossi and Springhetti
testified that they had access to partisan data during the map-drawing process by
using a computer program that allowed them to see the anticipated Republican and

44
 January Term, 2022

Democratic voting percentages for each district they drew. The program allowed
them to see how the percentages changed as they changed the district lines. Yet
DiRossi and Springhetti testified that they were never told to attempt to comply with
Section 6. Senate President Huffman and House Speaker Cupp confirmed that they
instructed DiRossi and Springhetti to focus on complying with other provisions of
Article XI but not on those in Section 6.
{¶ 110} Senate President Huffman and House Speaker Cupp nevertheless
argue that they did attempt to satisfy Article XI, Section 6(B)—after their plan was
first introduced on September 9—by negotiating with the Democratic members of
the commission and modifying their original proposal. Governor DeWine,
Secretary LaRose, and Auditor Faber also argue that they “attempted to achieve a
bipartisan ten-year plan” before September 15. But when the evidence offered to
show that an “attempt” had been made under Section 6 is nothing more than the
political negotiations between commission members, the evidence falls short in
demonstrating that the commission has drawn a plan that complies with the
requirements of the section.
{¶ 111} Article XI, Section 6(B) does not require the majority-party
members of the commission to try to draw a plan that is acceptable to the minority-
party members of the commission or vice versa. It requires all members of the
commission to attempt to draw a plan in which the proportional favor to each
political party’s candidates “correspond[s] closely” to statewide voter preferences
over a defined period. In fact, even if commission members of the minority party
agreed to a proposed plan, this does not necessarily mean that the agreed-upon plan
would comply with Section 6.
{¶ 112} Moreover, petitioners have introduced substantial expert evidence
showing that the commission could have drawn a more proportional plan. One
expert, Dr. Kosuke Imai, a professor in Harvard University’s departments of
government and of statistics, who has expertise in developing simulation

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algorithms for evaluating legislative redistricting, employed a redistricting

simulation algorithm using the Article XI criteria to generate 5,000 possible district
plans, none of which favored a party as strongly as the plan adopted by the
commission. Dr. Imai’s analysis showed that the plan adopted by the commission
was an outlier, displaying a greater degree of disproportionality than any of the
simulated maps he generated. Petitioners have also offered the expert report of Dr.
Jonathan Rodden, a professor of political science at Stanford University with
expertise in the analysis of geospatial data, including research on the relationship
between the patterns of political representation, geographic location of
demographic and partisan groups, and the drawing of electoral districts. Dr.
Rodden drew a plan that was compliant with Article XI and that is more
proportional to the statewide voter preferences than the plan adopted by the
commission.
{¶ 113} Respondents offer little to dispute this evidence. In fact, Senate
President Huffman and House Speaker Cupp respond to it in their brief by
conceding that “[Petitioners’] experts can easily draw simulated maps after the fact
that provide exact proportionality by making exact proportionality one of their
criteria for drawing maps.” They argue that there are no manageable standards for
this court to apply in determining how “fair” a plan must be. But Article XI, Section
6(B) recognizes that fairness is measured by efforts taken to achieve close
proportionality; it requires the commission to attempt to draw a plan in which the
statewide proportion of districts corresponds closely with the statewide preferences
of Ohio voters “based on statewide state and federal partisan general election results
during the last ten years,” Ohio Constitution, Article XI, Section 6(B). Petitioners’
expert evidence further supports the conclusion that the commission did not attempt
to meet the standard set forth in Section 6(B).

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 January Term, 2022

{¶ 114} Based on the evidence presented, we conclude beyond a reasonable

doubt that the commission did not attempt to draw a district plan that meets the
standard articulated in Article XI, Section 6(B) of the Ohio Constitution.
4. The commission did not attempt to meet the Article XI, Section 6(A) standard
{¶ 115} Under Article XI, Section 6(A), the commission must attempt to
meet the standard that “[n]o general assembly district plan shall be drawn primarily
to favor or disfavor a political party.” To understand what Section 6(A) requires, it
is again helpful to look to this court’s decision in Wilson.

The words used in [former] Article XI do not explicitly

require political neutrality, or for that matter, politically competitive
districts or representational fairness, in the apportionment board’s
creation of state legislative districts. Unlike Ohio, some states
specify in either constitutional or statutory language that no
apportionment plan shall be drawn with the intent of favoring or
disfavoring a political party. * * * Therefore, Article XI does not
prevent the board from considering partisan factors in its
apportionment decision.

(Emphasis added.) Wilson, 134 Ohio St.3d 221, 2012-Ohio-5367, 981 N.E.2d 814,
at ¶ 14.
{¶ 116} Thus, in holding that former Article XI did not require partisan
fairness in the drawing of state legislative districts, this court found it significant
that the Ohio Constitution did not include language forbidding a plan from being
drawn with the intent to favor or disfavor a political party. The Ohio Constitution
now contains language that is almost identical to the language that this court found
to be missing from former Article XI. This language does not prohibit a district
plan from favoring or disfavoring a political party. It prohibits a plan from being

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 SUPREME COURT OF OHIO

drawn primarily to favor or disfavor a political party. The language, by necessity,

requires this court to discern the map drawers’ intent.
{¶ 117} Courts have found that direct or circumstantial evidence may
establish that a districting plan was drawn primarily to favor one political party over
another. See League of Women Voters of Florida v. Detzner, 172 So.3d 363, 375-
376 (Fla.2015); see also Ohio A. Philip Randolph Inst. v. Householder, 373
F.Supp.3d 978, 1096 (S.D.Ohio 2019), vacated on other grounds sub nom. Chabot
v. Ohio A. Philip Randolph Inst., __ U.S. __, 140 S.Ct. 102, 205 L.Ed.2d 1 (2019),
by Rucho v. Common Cause, __ U.S. __, 139 S.Ct. 2484, 204 L.Ed.2d 931 (2019),
quoting Washington v. Davis, 426 U.S. 229, 242, 96 S.Ct. 2040, 48 L.Ed.2d 597
(1976) (“Plaintiffs may prove discriminatory partisan intent using a combination of
direct and indirect evidence because ‘invidious discriminatory purpose may often
be inferred from the totality of the relevant facts’ ”).
{¶ 118} A map-drawing process may support an inference of predominant
partisan intent. The evidence here demonstrates that Senate President Huffman and
House Speaker Cupp controlled the process of drawing the maps that the
commission ultimately adopted. No other commission members had access to
DiRossi and Springhetti; nor did other commission members have any role in
drawing the plan. Senate President Huffman and House Speaker Cupp did not
instruct DiRossi and Springhetti to comply with Article XI, Section 6. Indeed,
Senate President Huffman and House Speaker Cupp do not view Section 6 as
mandatory. Although DiRossi and Springhetti testified that they were focused on
Article XI’s technical line-drawing requirements, they acknowledged that while
drafting the proposed plan, a window on their computer screens displayed the
partisan leanings of potential districts.
{¶ 119} This is not the process that Article XI contemplates. Section 1(C)
provides that the commission “shall draft the proposed plan in the manner
prescribed in” Article XI, and Section 1(B)(2) allows the commission to hire its

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 January Term, 2022

own staff to do so. Despite this language, the commission itself did not engage in
any map drawing or hire independent staff to do so. Instead, the legislative
caucuses of the two major political parties—i.e., the groups with the most self-
interest in protecting their own members—drew maps for the commission to
consider.
{¶ 120} At bottom, the process that culminated in the adopted plan, having
been directed and controlled by one political party’s legislative leaders, was not an
attempt to comply with Section 6(A) or 6(B) standards. When a single party
exclusively controls the redistricting process, “it should not be difficult to prove
that the likely political consequences of the reapportionment were intended.” Davis
v. Bandemer, 478 U.S. 109, 129, 106 S.Ct. 2797, 92 L.Ed.2d 85 (1986) (plurality
opinion), abrogated on other grounds by Rucho, __ U.S. __, 139 S.Ct. 2484, 204
L.Ed.2d 931.
{¶ 121} Further, the expert evidence supports the conclusion that the adopted
plan’s partisan skew cannot be explained solely by nondiscriminatory factors. Under
the adopted plan, Republicans are favored to win between 61 and 68 House seats
and between 20 and 24 Senate seats. The expert report of Dr. Michael Latner, a
professor of political science at California Polytechnic State University with
expertise in electoral-system design and statistical methods in elections and in
designing electoral districts, shows that the plan substantially favors Republican
voters through targeted “cracking” and “packing” of Democratic voters that “did
not occur by chance or accident.”13 Using a partisan-symmetry analysis, a metric
that is broadly accepted by political scientists to measure partisan bias, Dr. Latner

13. “A ‘cracked’ district is one in which a party’s supporters are divided among multiple districts,
so that they fall short of a majority in each; a ‘packed’ district is one in which a party’s supporters
are highly concentrated, so they win that district by a large margin, ‘wasting’ many votes that would
improve their chances in others.” Rucho, __ U.S. at ___, 139 S.Ct. at 2492, 204 L.Ed.2d 931.

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concluded that the plan adopted by the commission significantly discriminates

against Democratic voters to the advantage of Republican voters.
{¶ 122} “Partisan symmetry” measures whether each party would receive the
same share of legislative seats assuming that each had identical percentage vote
shares. Dr. Latner’s analysis showed that if Republican candidates won 54 percent
of the statewide vote under the adopted plan, they would win 64 House seats (a
supermajority). In contrast, with the same statewide vote-share percentage,
Democratic candidates would not win even a bare majority of the House seats under
the adopted plan. Similarly, for statewide vote shares ranging from 45 percent to 55
percent—within the swing of actual Ohio voting patterns—Dr. Latner projected that
under the Senate map that was adopted, the Republican candidates would win an
average of 17 percent more seats than Democratic candidates for the same vote share.
{¶ 123} Dr. Latner further opined that “discretionary choices,” as opposed to
the necessity of complying with Article XI’s objective map-drawing criteria, were
the reasons for the asymmetry. His analysis showed that many district boundaries in
the plan conform to partisan precincts in a precise manner, which supports the
conclusion that the drawers of the plan relied on the partisan makeup of the districts
and attempted to draw districts to favor one political party over the other. Dr. Latner
identified counties throughout the state (Cuyahoga, Lucas, Summit, Hamilton, and
Montgomery) where boundaries were unnecessarily drawn to create “safe seats” for
Republican candidates.
{¶ 124} Dr. Imai’s work also supports the conclusion that the adopted
plan’s partisan skew is not due to Ohio’s political geography. Using Article XI’s
map-drawing criteria, Dr. Imai generated 5,000 possible district plans. Of those
simulated plans, none was as favorable to Republicans as the adopted plan. The
fact that the adopted plan is an outlier among 5,000 simulated plans is strong
evidence that the plan’s result was by design.

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{¶ 125} Dr. Imai also performed a detailed analysis of districts in Hamilton,

Franklin, and Cuyahoga-Summit-Geauga counties.14 Using data from 13 statewide
elections from 2012 to 2020, Dr. Imai found that the adopted plan had a pattern of
packing disproportionately large numbers of Democratic voters into some districts
while turning other districts into Republican safe seats. This targeted packing and
cracking of Democratic voters allowed the adopted plan to gain Republican House
seats in these counties. And among all possible compliant Senate plans that
included these counties, the adopted plan was an outlier: none of the simulations
projected as many legislative seats being won by Republican candidates.
{¶ 126} Dr. Rodden’s expert report similarly demonstrates that the adopted
plan was drawn primarily to favor Republican candidates and to disfavor
Democratic candidates. Dr. Rodden compared the adopted plan to other plans,
including a plan that he created. Though Dr. Rodden acknowledged the challenges
presented by Ohio’s political geography, he concluded that the partisan skew of the
adopted plan was not a product of those challenges. In his view, the adopted plan
resulted from (1) strategic packing and cracking of Democratic voters in
metropolitan areas, (2) splitting proximate groups of Democratic voters to scatter
them across majority-Republican rural and exurban districts (e.g., the Cincinnati
and Dayton metropolitan areas), and (3) keeping proximate groups of Democratic
voters apart to carve out majority-Republican districts within urban counties.15
Indeed, when Dr. Rodden drew his district plan that adhered to traditional
redistricting principles, complied with Article XI, and did not endeavor to help or
harm any political party, the result was much different: a plan with more compact

14. Dr. Imai analyzed Cuyahoga, Summit, and Geauga counties as a “cluster.” Multiple House
districts in the adopted plan stretched across county lines in this area.

15. As examples, Dr. Rodden cited District 10 in southwest Franklin County, District 27 in eastern
Hamilton County, District 39 outside Dayton, and District 17 in southern Cuyahoga County. He
discerned a strategy to configure districts with “long, narrow strips hugging the county boundary in
sparsely populated exurban areas.”

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districts and in which the partisan split in Republican candidates’ favor was 57
percent to 43 percent in the House and 55 percent to 45 percent in the Senate.
{¶ 127} Senate President Huffman and House Speaker Cupp argue that the
Republican advantage in the adopted plan results from the changing voting and
residential patterns of Ohioans. They cite both Dr. Rodden—one of petitioners’
experts—and their own experts to show that Democratic voters are highly clustered
in urban areas while Republican voters are scattered more evenly throughout the
state. This clustering, they say, creates a “natural disadvantage” for Democratic
candidates when legislative districts are drawn, with the result being that
Democratic candidates have far fewer counties in which they can be competitive.
{¶ 128} There is no dispute among the experts that Ohio’s political
geography poses challenges in the drawing of overall Article XI-compliant
districts. But the testimony of respondents’ experts does not rebut the key point
established by petitioners’ experts: it is possible to draw a plan that is compliant
with Article XI and that does not favor the majority party to the overwhelming
extent that the adopted plan does.
{¶ 129} To show that the adopted plan’s partisan skew was due to the
political geography of the state, Senate President Huffman and House Speaker
Cupp submitted expert testimony from Dr. Michael Barber, a professor of political
science at Brigham Young University with expertise in advanced statistical
methods for analyzing election data, and Sean P. Trende, a doctoral candidate in
political science at the Ohio State University and an analyst with RealClearPolitics.
Dr. Barber and Trende mainly compared the adopted plan to plans introduced by
Senator Sykes on September 1 and September 15. They point out the various ways
in which Senator Sykes’s plans are pro-Democratic gerrymanders. Similarly, an
affidavit submitted by DiRossi details the ways in which Senator Sykes’s
September 15 plan and a plan offered by a citizen group do not comply with Article
XI. But showing that other plans are pro-Democratic gerrymanders or

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noncompliant with Article XI does not validate the adopted plan. Nor does it show
that the commission attempted to comply with Article XI, Section 6(A) when it
drew the adopted plan.
{¶ 130} Senate President Huffman and House Speaker Cupp offer
additional expert testimony addressing whether the adopted plan has a partisan bias.
Trende questions the metrics used by petitioners’ experts to measure partisan bias,
opining that it is not clear what this court must infer from those metrics. Trende
does not, however, offer an alternative way to measure partisan bias. More
importantly, he does not offer testimony rebutting Dr. Rodden’s or Dr. Imai’s
evidence that it is possible for the commission to draw a district plan that is
compliant with Article XI and that does not favor Republican candidates so heavily.
{¶ 131} Although respondents have presented evidence showing that Ohio’s
political geography and the map-drawing requirements of Article XI, Sections 3 and
4 may naturally lead to a district map’s favoring the Republican candidates, the
evidence shows that these factors did not dictate as heavy a partisan skew as there is
in the adopted plan. Petitioners have shown beyond a reasonable doubt that the
commission did not attempt to draw a districting plan that meets the standard
articulated in Section 6(A).16

16. The second dissenting opinion concedes that our analysis of what constitutes an attempt to
comply with Article XI, Section 6 is plausible but also takes the position that the commission
members’ efforts to comply with that provision, as chronicled in the first dissenting opinion, is also
plausible. The plausibility of these competing interpretations, according to the second dissenting
opinion, means that petitioners cannot satisfy their burden of proving beyond a reasonable doubt
that the plan is unconstitutional. For this proposition, the second dissenting opinion relies on Ohio
Grocers Assn. v. Levin, 123 Ohio St.3d 303, 2009-Ohio-4872, 916 N.E.2d 446, ¶ 24, in which we
held that “it is not enough to show that one plausible reading requires [a] statute to be stricken as
unconstitutional, when another plausible reading permits it to survive.” See also Harrold v. Collier,
107 Ohio St.3d 44, 2005-Ohio-5334, 836 N.E.2d 1165, ¶ 37 (“The fact that a statute might operate
unconstitutionally under some plausible set of circumstances is insufficient to render it wholly
invalid”). The second dissenting opinion’s reliance on the analysis applicable to facial challenges
to the constitutionality of statutes is misplaced. We do not have before us two competing
interpretations of a statute, one of which would make it unconstitutional and the other constitutional.
Rather, we have (as the second dissenting opinion highlights) competing interpretations of the
constitutional provision itself, i.e., what the term “shall attempt” means as used in Section 6. To

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D. Article XI, Section 3(B)(2)

{¶ 132} Article XI, Section 3(B)(2) of the Ohio Constitution provides, “Any
general assembly district plan adopted by the commission shall comply with all
applicable provisions of the constitutions of Ohio and the United States and of federal
law.” Petitioners OOC et al. argue that the adopted district plan violates this
provision because it does not comply with the Ohio Constitution’s guarantees of
equal protection (Article I, Section 2), assembly (Article I, Section 3), and free speech
(Article I, Section 11). They argue that the plan violates the Equal Protection Clause
by diluting the weight of Democratic votes and that it violates the Assembly and Free
Speech Clauses by burdening Democrats’ political and associational activities.
{¶ 133} Because we invalidate the plan under Article XI, Sections 6(A) and
6(B), we do not reach these claims. We express no opinion on whether a plan could
comply with the requirements of Article XI yet still violate the Equal Protection,
Assembly, or Free Speech Clauses of the Ohio Constitution.
{¶ 134} A final note. Our analysis and conclusion in these cases would be
the same regardless of which political party makes up the majority of the
commission or drives the map-drawing process. And any disagreement between
the members of this court about the legal interpretation of words in the Ohio
Constitution does not undermine the integrity of the court or Ohioans’ confidence
in it, as the second dissenting opinion fears. It is a hallmark of an independent
judiciary, made up here of seven jurists, that principled legal disagreements may
arise. When disagreements do arise and are addressed intelligently and truthfully
by the justices, confidence in the judicial branch of our government is strengthened.

prevail on their challenge in these cases, petitioners must prove beyond a reasonable doubt that the
plan violates Section 6 as we definitively interpret it; they do not have to prove that the plan is
unconstitutional under some other interpretation of Section 6 not adopted by this court. See Wilson,
134 Ohio St.3d 221, 2012-Ohio-5367, 981 N.E.2d 814, at ¶ 48 (“we consider the plan against the
requirements of the United States and Ohio Constitutions, as interpreted by federal and state
decisional law” [emphasis added]).

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But when they are addressed with dire predictions and what appears to be
unreasonable characterizations, we cannot help but wonder whether such
aspersions will shake the public’s confidence in our court.
E. Remedy
{¶ 135} For the reasons set forth above, we hold that the redistricting
commission did not comply with Article XI, Section 6. We therefore declare the
plan invalid and order the commission to be reconstituted and to adopt a plan in
conformity with the Ohio Constitution.
{¶ 136} We are mindful of the imminent 2022 election cycle, which starts
with the February 2, 2022 deadline for candidates for legislative offices to submit
petitions and declarations of candidacy. See R.C. 3513.05. And because the
election cycle should not proceed with a General Assembly–district map that we
have declared invalid, it is appropriate to issue further remedial orders in an effort
to have the redistricting commission adopt a plan that complies with Article XI in
time for the plan to be effective for the 2022 election cycle. See Ohio Constitution,
Article IV, Section 2(B)(1)(f); State v. Steffen, 70 Ohio St.3d 399, 407, 639 N.E.2d
67 (1994) (interpreting Section 2(B)(1)(f) “to authorize judgments in this court that
are necessary to achieve closure and complete relief in actions pending before the
court”).
{¶ 137} Therefore, in addition to declaring the plan invalid and ordering the
commission to reconvene to adopt a new plan, we direct the commission to adopt a
new plan within ten days of this judgment. We also retain jurisdiction to review
the plan that the commission adopts for compliance with our order.
III. CONCLUSION
{¶ 138} Because the commission did not attempt to meet the standards set
forth in Article XI, Sections 6(A) and 6(B) of the Ohio Constitution, we declare
invalid the General Assembly–district plan adopted on September 16, 2021. Pursuant
to Article XI, Section 9(B), we order the commission to be reconstituted under

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Article XI, Section 1, to convene, and to ascertain and adopt a General Assembly–
district plan in conformity with the Ohio Constitution. The commission’s plan shall
comply with the standards set forth in Sections 6(A) and 6(B) as we have explained
them above.
{¶ 139} We further order the commission to adopt a new plan within ten
days of this judgment, and we retain jurisdiction for the purpose of reviewing the
new plan adopted by the commission. Petitioners shall file any objections to the
new plan within three days of the plan’s adoption.
Relief granted.
DONNELLY, J., concurs.
O’CONNOR, C.J., concurs, with an opinion joined by BRUNNER, J.
BRUNNER, J., concurs, with an opinion.
KENNEDY, J., dissents, with an opinion joined by DEWINE, J.
FISCHER, J., dissents, with an opinion.
_________________
O’CONNOR, C.J., concurring.
{¶ 140} I concur fully in the majority opinion.
{¶ 141} I write separately because readers should understand they have the
power to again amend the Ohio Constitution to ensure that partisan politics is
removed from the drawing of Ohio Senate and House districts that takes place every
ten years.
{¶ 142} And, if upon reading the court’s decision today, readers determine
that Article XI of the Ohio Constitution is not living up to its promise—in light of
the map-drawing process presented to the court in these cases (or the dissenting
opinions’ assertion that Article XI has no discernable or enforceable effect to curb
gerrymandering in the state of Ohio)—and that leaving the redistricting process to
partisan-elected officials will not achieve the desired outcome, readers should know
that other models of the redistricting process exist. In other states, voters have

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elected ballot measures that strip redistricting authority from state legislatures and
partisan officeholders and place it instead with nonpartisan redistricting
commissions. Indeed, “independent redistricting commissions are increasingly
synonymous with citizen redistricting commissions, where ordinary citizens serve
as commissioners,” because staffing commissions with career politicians, including
legislators, “still permitted informal, careerist, and political interests to permeate
the redistricting process.” (Emphasis sic.) Emily Rong Zhang, Bolstering Faith
with Facts: Supporting Independent Redistricting Commissions with Redistricting
Algorithms, 109 Cal.L.Rev. 987, 989-990 (2021), citing Bruce E. Cain,
Redistricting Commissions: A Better Political Buffer?, 121 Yale L.J. 1808, 1817-
1821 (2012).
{¶ 143} While not free from their own vulnerabilities, independent
redistricting commissions have become “the premier institutional solution to the
problem of partisan gerrymandering” because they increase the degree of
separation between map-drawers and partisan politics. Zhang, 109 Cal.L.Rev. at
1000. They shift the power to redistrict away from partisan actors who have an
incentive to gerrymander in order to maintain or expand their political power.
Christopher Esposito, Gerrymandering and the Meandering of Our Democratic
Principles: Combating Partisan Gerrymandering After Rucho, 30 S.Cal.
Interdisc.L.J. 195, 211 (2021). States that have enacted citizen-led, independent
redistricting commissions include Arizona, California, Michigan, and Colorado.
Zhang, 109 Cal.L.Rev. at 990.
{¶ 144} In 2000, in an effort to end the practice of gerrymandering, Arizona
voters adopted Proposition 106, an initiative that amended the state’s constitution
to shift redistricting authority from the state legislature to the Arizona Independent
Redistricting Commission (“AIRC”). See Arizona State Legislature v. Arizona
Independent Redistricting Comm., 576 U.S. 787, 792, 135 S.Ct. 2652, 192 L.Ed.2d
704 (2015). The resulting constitutional amendment provides for a five-member

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commission, with each member chosen from a pool of nominees established by the
state’s commission on appellate-court appointments. Arizona Constitution, Article
IV, Part 2, Section 1(3) through (6). The first four members of the AIRC are chosen
by the majority and minority party leaders in the state legislature, who each select
one member from the nomination pool. Id. at Section 1(6). Those four named
commission members then choose the final member from the same nomination
pool; the final member may not be registered with any political party already
represented on the commission. Id. at Section 1(8). Except for school-board
members and officers or candidates for school board, current holders of, or
candidates for, public office may not serve on the AIRC, and no more than two of
the commission’s five members may be affiliated with the same political party. Id.
at Section 1(3). The Arizona initiative required that AIRC’s redistricting plans
“start from scratch, modifying an initial grid plan according to traditional criteria
such as compactness, contiguity, and community of interest, and to the extent
possible relying on visible geographic features and undivided census tracts,”
without considering incumbency or using political data in the construction of the
initial grid. Cain, 121 Yale L.J. at 1830.
{¶ 145} The California Redistricting Commission operates similarly to the
AIRC, but its redistricting plans take effect only if approved by public referendum.
Arizona State Legislature at 798, citing California Constitution, Article XXI,
Section 2 and Cal.Govt.Code Ann. 8251-8253.6 (West Supp.2015); see also Cain,
121 Yale L.J. at 1823. “The unstated assumption behind the California effort was
that a bipartisan panel of citizens, unconnected to incumbent legislators and relying
on neutral criteria, would create fair and competitive district boundaries without
explicit instructions to do so and without using political data. In other words,
partisan fairness and competition would be the indirect effect of the commission’s
composition and adherence to designated neutral formal criteria (e.g., compactness,
respect for city and county boundaries, following communities of interest, etc.).”

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Cain, 121 Yale L.J. at 1823-1824. The multi-step process for choosing the 14
commission members in California was “ ‘designed to be extraordinarily fair and
impartial, and lead to a group of commissioners who would meet the very high
standards of independence and would reflect the population of [the state].’ ” Id. at
1824, quoting California Citizens Redistricting Commission, Final Report on 2011
Redistricting 2 (2011).
{¶ 146} More recently, in 2018, Michigan voters passed a proposal to
amend that state’s constitution “ ‘to establish a commission of citizens with
exclusive authority to adopt district boundaries for the Michigan Senate, Michigan
House of Representatives and U.S. Congress.’ ” Daunt v. Benson, 999 F.3d 299,
303 (6th Cir.2021), quoting Michigan Board of State Canvassers, Official Ballot
Wording approved by the Board of State Canvassers, August 30, 2018, Voters Not
Politicians,
https://www.michigan.gov/documents/sos/Official_Ballot_Wording_Prop_18-
2_632052_7.pdf. The Michigan commission consists of 13 registered voters,
randomly selected by the secretary of state from eligible applicants. Id. at 304. It
must include four members who are affiliated with each of the state’s two major
political parties and five members who are unaffiliated with those parties. Id.
Partisan officeholders and candidates, their employees and certain relatives, and
lobbyists are prohibited from serving on the commission. Id. And a final decision
by the commission to adopt a redistricting plan requires a majority vote that
includes at least two commissioners who affiliate with each major political party
and two commissioners who do not affiliate with either major party. Id. at 305,
citing Michigan Constitution Article IV, Section 6(14)(c).
{¶ 147} Having now seen firsthand that the current Ohio Redistricting
Commission—comprised of statewide elected officials and partisan legislators—is
seemingly unwilling to put aside partisan concerns as directed by the people’s vote,
Ohioans may opt to pursue further constitutional amendment to replace the current

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commission with a truly independent, nonpartisan commission that more

effectively distances the redistricting process from partisan politics.
BRUNNER, J., concurs in the foregoing opinion.
_________________
BRUNNER, J., concurring.
{¶ 148} I fully join the majority opinion invalidating the 2021 redistricting
plan for the Ohio General Assembly under Article XI, Section 6(B) of the Ohio
Constitution. In addition, I would find the plan invalid under Article XI, Section
3(B)(2), as argued by petitioners Ohio Organizing Collaborative, the Ohio chapter
of the Council on American-Islamic Relations, the Ohio Environmental Council, and
six individual voters17 (collectively, “the OOC”) in Supreme Court case No. 2021-
1210. Article XI, Section 3(B)(2) provides that “[a]ny general assembly district
plan adopted by the commission shall comply with all applicable provisions of the
constitutions of Ohio and the United States and of federal law.” I agree with the
OOC that the plan violates Article I, Section 2 of the Ohio Constitution, which
concerns equal protection, and therefore violates Article XI, Section 3(B)(2). There
can be no debate about this court’s jurisdiction to review the Ohio Redistricting
Commission’s four-year plan under Article XI, Section 9 for an alleged violation
of Article XI, Section 3, see Article XI, Section 9(D)(3), and, despite the
contentions of the dissenting opinions, I concede no jurisdictional deficiency as to
the matters reviewed in the majority opinion.
{¶ 149} The OOC’s argument is that the legislative redistricting plan does not
comply with the Ohio Constitution’s guarantees of equal protection (Article I,
Section 2), freedom of assembly (Article I, Section 3), and freedom of speech (Article
I, Section 11). It contends that the plan violates the Equal Protection Clause by
diluting the weight of Democratic votes and that they violate the Assembly and Free

17. The six voters in case No. 2021-1210 are Pierrette Talley, Samuel Gresham Jr., Ahmad
Aboukar, Mikayla Lee, Prentiss Haney, and Crystal Bryant.

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Speech Clauses by burdening Democrats’ political and associational activities. I

focus solely on the OOC’s equal-protection claims regarding the dilution of
Democratic votes in reviewing the plan under Article I, Section 2.
I. The plan violates petitioners’ rights to vote on equal terms
{¶ 150} Both of the dissents in this case argue that this court has no power
to review the four-year plan for legislative redistricting that was adopted by the
Ohio Redistricting Commission in late 2021. The dissents argue that voters in
newly reconstituted, gerrymandered districts may vote out of office their elected
legislative representatives if they do not believe their leaders have honored their
oaths to the Ohio Constitution requiring fair legislative districts. While “vote them
out of office” is an oft-used, convenient mantra of political laissez-faire, Ohio
voters did not vote to “let it be.” The dissents dissect and wring from Article XI a
ban against this court’s acting to address what is our exclusive responsibility
concerning a four-year redistricting plan. By providing a remedy to petitioners
under this new Article XI of our Constitution, we are neither exercising “judicial
fiat,” dissenting opinion of Kennedy, J., at ¶ 277, nor undermining the public’s
confidence in this court nor harming the judicial branch of Ohio’s government “for
generations,” dissenting opinion of Fischer, J., at ¶ 351. Instead, we are exercising
our constitutionally required jurisdiction under Article XI, Section 9(A), to do what
we are commanded to do by the people of Ohio in their spoken word through our
state’s Constitution. The majority opinion correctly explains our authority to act
and provides a necessary remedy. This separate opinion explains another reason
why we are obliged to act—to provide for the equal protection and benefit of the
people under Article I, Section 2 of the Ohio Constitution.
{¶ 151} Gerrymandering at its core prevents voters from voting on equal
terms to alter or reform their government. Article I, Section 2 provides: “All
political power is inherent in the people. Government is instituted for their equal
protection and benefit, and they have the right to alter, reform, or abolish the same,

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whenever they may deem it necessary.” This language is broader than the language
of the Fourteenth Amendment to the United States Constitution,18 which contains
proscriptions against taking or denying benefits, especially by the states. The
OOC’s dependence on Article I, Section 2, is well-founded because that provision
builds into the Ohio Constitution foundational reasons for the existence of state
government—for the equal protection and benefit of the people. Id.
{¶ 152} The right to vote is at the core of this provision, as altering and
reforming the government is done most directly and most commonly by casting a
ballot. See Hamilton v. Fairfield Twp., 112 Ohio App.3d 255, 275, 678 N.E.2d 599
(12th Dist.1996) (“the right to vote or otherwise choose whether to form a
municipal corporation is a fundamental right that is guaranteed by Section 2, Article
I of the Ohio Constitution”); see also State ex rel. LetOhioVote.org v. Brunner, 123
Ohio St.3d 322, 2009-Ohio-4900, 916 N.E.2d 462, ¶ 55 (“Ours is still a
representative democracy in which legislators derive their authority from the
citizens of our state”).
{¶ 153} When describing this right to vote, state law routinely uses the term
“elector.” An elector is a person who has “the qualifications provided by law to be
entitled to vote.” R.C. 3501.01(N). When an elector “votes at an election,” he or
she becomes a “voter.” R.C. 3501.01(O). Electors’ rights may not be interfered
with, and electors may not be harassed while registering or voting, R.C. 3501.90.
Electors sign petitions that permit candidates and issues to appear on local and
statewide ballots. R.C. 3501.38(A). Electors file election protests, because they
have standing to contest a candidacy that is the subject of the protest. See R.C.
3501.39; R.C. 3513.05 (“Protests against the candidacy of any person filing a

18. “No state shall make or enforce any law which shall abridge the privileges or immunities of
citizens of the United States; nor shall any State deprive any person of life, liberty, or property,
without due process of law; nor deny to any person within its jurisdiction the equal protection of the
laws.” Fourteenth Amendment to the U.S. Constitution.

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declaration of candidacy for party nomination or for election to an office or

position, as provided in this section, may be filed by any qualified elector who is a
member of the same political party as the candidate and who is eligible to vote at
the primary election for the candidate whose declaration of candidacy the elector
objects to, or by the controlling committee of that political party”); State ex rel.
Bender v. Franklin Cty. Bd. of Elections, 157 Ohio St.3d 120, 2019-Ohio-2854, 132
N.E.3d 664, ¶ 8 (“only the controlling committee of a political party or a qualified
elector who is a member of the same political party as the protested candidate and
who is eligible to vote for the candidate in the primary election may protest a
candidate’s petition” [emphasis added]). Electors collectively decide taxation
issues when they vote. See, e.g., R.C. 5748.09. When they vote, electors participate
in the determination of questions involving local economic development. R.C.
715.691. Electors decide questions involving the transfer of school-district territory
and more. See, e.g., R.C. 3311.22.
{¶ 154} Article XI, Section 6(B) requires that “[t]he statewide proportion
of districts whose voters, based on statewide state and federal partisan general
election results during the last ten years, favor each political party shall correspond
closely to the statewide preferences of the voters of Ohio.” When electors are
assigned to legislative districts by a plan that does not closely correspond to the
statewide preferences of all Ohio voters, the effect of the votes for parties’
candidates is either disproportionately diminished or disproportionately
legitimized. Some electors of the disproportionately diminished party may choose
not to become voters at that election, believing that their vote in a severely
gerrymandered district is of little or no consequence. When an elector, for example,
is asked by her employer to work late on Election Day and working extra may
jeopardize her ability to arrive at the polling place before it closes at 7:30 p.m., she
may simply shrug and say, “Oh, well, my vote really doesn’t count anyway.” On
the other hand, a similarly situated voter in the disproportionally legitimized party

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in a gerrymandered district might also work late and choose not to vote, thinking,
“They do not need my vote; there are so many people already voting for the
candidate or issue I care about.” In this scenario, under the adopted redistricting
plan, there would be less impact on Republican Party candidates than on
Democratic Party candidates. And it goes without saying that legislative
representatives can use the power they have to cement their power by changing the
very laws that provide electors and voters the opportunities to participate in their
own governance through the vote.
{¶ 155} With depressed voter turnout, all electors and voters are affected.
This may result in doubt and lack of confidence in the democratic process—that is,
whether the outcome of an election by so few voters as compared to electors is truly
the will of the people.
{¶ 156} Gerrymandering and its resulting effects undermine a government
that is intended for the benefit and equal protection of the people. See Ohio
Constitution, Article I, Section 2. Gerrymandering is not beneficially foundational.
See id. Gerrymandering damages voter confidence and that fragile thing we call
democracy. Gerrymandering is unconstitutional, because it denies Ohioans equal
protection in the exercise of their voting power. See Ohio Constitution, Article I,
Section 2 and Article XI, Section 3.
{¶ 157} Undeniably, “ ‘[t]he right to vote includes the right to have one’s
vote counted on equal terms with others.’ ” State ex rel. Skaggs v. Brunner, 120
Ohio St.3d 506, 2008-Ohio-6333, 900 N.E.2d 982, ¶ 58, quoting League of Women
Voters of Ohio v. Brunner, 548 F.3d 463, 476 (6th Cir.2008). A law—and in this
case, the Ohio Redistricting Commission’s plan—that decreases the weight or
dilutes the power of a group of citizens’ votes relative to their ability to achieve
representative influence in the legislature may impermissibly burden that right
when the outcomes relating to one class of voters are not proportional to the votes
cast. See Common Cause v. Lewis, N.C.Super. No. 18 CVS 014001, 2019 WL

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4569584, *116 (Sept. 3, 2019) (“There is nothing ‘equal’ about the ‘voting power’
of [one political party’s] voters when they have a vastly less realistic chance of
winning a majority in either chamber under the enacted plans”). There is no
allowance in Article I, Section 2 to create a favored (or disfavored) class of voters.
See Lucas Cty. Bd. of Commrs. v. Waterville Twp. Bd. of Trustees, 171 Ohio App.3d
354, 2007-Ohio-2141, 870 N.E.2d 791, ¶ 25-26, 32, 41 (6th Dist.) (holding that
such favored and disfavored classes of voters are forbidden by, among other
authorities, the Ohio Constitution). In short, when legislative maps are adopted in
a manner that manipulates electoral constituencies to favor and entrench the
legislative control of one party and disfavor another, creating unequal classes of
voters, this affects the weight and power of each person’s vote and violates Article
I, Section 2.
II. Three-prong test to prove an equal-protection violation
{¶ 158} In adjudicating the OOC’s claims that the adopted legislative-
district plan violates Article XI, Section 3(B)(2) of the Ohio Constitution, it is
appropriate to employ the three-prong test developed by a federal district court and
applied to Ohio’s 2012 congressional map in finding it invalid just two years ago.
See Ohio A. Philip Randolph Inst. v. Householder, 373 F.Supp.3d 978, 1093
(S.D.Ohio 2019).19 That Ohio A. Philip Randolph Inst. was vacated on
jurisdictional grounds does not vitiate the viability of its integrity or logic for
application here. The holding of the federal trial court in Ohio A. Philip Randolph

19. In Chabot v. Ohio A. Philip Randolph Inst., __ U.S. __, __, 140 S.Ct. 102, 205 L.Ed.2d 1 (2019),
the United States Supreme Court vacated the district court’s judgment in Ohio A. Philip Randolph
Inst. and remanded the matter to the district court for further consideration in light of its decision in
Rucho v. Common Cause, ___ U.S. ___, ___, 139 S.Ct. 2484, 204 L.Ed.2d 931 (2019), in which the
high court held that partisan-gerrymandering claims present political questions beyond the reach of
the federal courts, id. at ___, 139 S.Ct. at 2506-2507. The Supreme Court noted that these claims
may be justiciable in state courts because “[p]rovisions in state statutes and state constitutions can
provide standards and guidance for state courts to apply.” Id. at __, 139 S.Ct. at 2507. On remand,
however, the district court in Ohio A. Philip Randolph Inst. dismissed the case for lack of jurisdiction
in light of the decision in Rucho. See Ohio A. Philip Randolph Inst. v. Householder, S.D.Ohio No.
1:18-cv-357, 2019 U.S. Dist. LEXIS 186944 (Oct. 29, 2019).

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Inst. forms a persuasive, cogent basis for analyzing how our state constitutional
provisions may be used to perform an equal-protection analysis of the 2021 state
legislative maps. The federal court’s analysis was specifically applied to Ohio’s
2011 congressional redistricting map for 2012, and ten years later, the new
constitutional provisions in Article XI for state legislative redistricting now
specifically require the representational fairness discussed and sought in Ohio A.
Philip Randolph Inst. at 1092-1150.
{¶ 159} The United States Supreme Court in Rucho v. Common Cause
made clear that gerrymandering is an issue that cannot be solved by federal courts,
because there is “no plausible grant of authority in the [federal] Constitution”
allowing such an inquiry. ___ U.S. ___, ___, 139 S.Ct. 2484, 2507, 204 L.Ed.2d
931 (2019). However, the court noted that its holding did not “condemn complaints
about districting to echo into a void,” because state courts interpreting provisions
of state law that provide for fair districts were held to be capable of providing that
relief. Id. at __, 139 S.Ct. at 2507-2508 (noting constitutional amendments and
legislation in Florida, Missouri, Iowa, Delaware, Colorado, and Michigan).
{¶ 160} Thus, under the framework set forth in Ohio A. Philip Randolph
Inst., we should require that the OOC, to establish a violation of the Equal
Protection Clause of the Ohio Constitution, “demonstrate that those in charge of
the redistricting ‘acted with an intent to “subordinate adherents of one political
party and entrench a rival party in power.” ’ ” 373 F.Supp.3d at 1093, quoting
Common Cause v. Rucho, 318 F.Supp.3d 777, 862 (M.D.N.C.2018), vacated by
Rucho, __ U.S. __, ___ 139 S.Ct. 2484, 204 L.Ed.2d 931, quoting Arizona State
Legislature v. Arizona Indep. Redistricting Comm, 576 U.S. 787, 791, 135 S.Ct.
2652, 192 L.Ed.2d 704 (2015). This goes to the fundamental protection of ensuring
that state government will continue to be instituted for Ohioans’ benefit and equal
protection under Article I, Section 2, especially when relating to access to voting
and its equal import no matter where a person resides in the state.

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{¶ 161} Second, we should require that the OOC prove the plan’s
discriminatory effect, demonstrating that the plan will have the effect of “diluting
the votes of members of the disfavored party.” Ohio A. Philip Randolph Inst. at
1096. In light of Article I, Section 2, “[a]ll political power is inherent in the people”
and it must be equally so. Any plan that is proved to have the effect of “diluting
the votes of members of the disfavored party” violates Article I, Section 2.
{¶ 162} Finally, if subordination and entrenchment along with vote dilution
are proved, the burden should shift to the respondents “to present evidence that
legitimate legislative grounds provide a basis for the way in which [the map] was
drawn.” Id. at 1098. In Wilson v. Kasich, 134 Ohio St.3d 221, 2012-Ohio-5367,
981 N.E.2d 814, ¶ 80-82, Justice McGee Brown noted in her dissent that

[o]ther states have also shifted the burden of proof to the parties
responsible for the apportionment plan to justify their departure
from certain constitutional provisions once [the] relators established
that the plan is unconstitutional in some respect. See In re
Legislative Districting of the State, 370 Md. [312,] 368, 805 A.2d
292 [2002] (when apportionment plan raised sufficient issues with
respect to its compliance with state constitutional requirements,
court placed burden of proof on the state to justify the plan); In re
Reapportionment of Colorado Gen. Assembly, 45 P.3d 1237, 1241
(Colo.2002) (court held that if an apportionment plan does not
comply with the county-boundary requirement of the Colorado
Constitution, the reapportionment commission must make an
adequate factual showing that less drastic alternatives could not
have satisfied the equal-population constitutional requirement); In
re Legislative Districting of Gen. Assembly of Iowa, 193 N.W.2d
784, 791 (Iowa 1972) (state failed to sustain burden of proof to show

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why state legislative reapportionment plan could not comply with

state constitution’s compactness requirement).
This approach is logical. The respondents who crafted and
approved the apportionment plan are in the best position to know the
basis for any noncompliance with [former] Article XI.
Therefore, I would hold that once [the] relators make a prima
facie showing beyond a reasonable doubt that [the] respondents
have violated a provision of [former] Article XI of the Ohio
Constitution, the burden of proof shifts to [the] respondents to
justify that violation based on the avoidance of a violation of another
superior or coequal legal requirement. Id.

{¶ 163} The application of the three-part test also would be favored based
on the plain language of Article I, Section 2, which indicates that the interests of
the people are paramount and that the people have the right to abolish their
government. Moreover, this provision of the state Constitution has been interpreted
as requiring “that the government treat all similarly situated persons alike.”
Sherman v. Ohio Pub. Emps. Retirement Sys., 163 Ohio St.3d 258, 2020-Ohio-
4960, 169 N.E.3d 602, ¶ 14, citing McCrone v. Bank One Corp., 107 Ohio St.3d
272, 2005-Ohio-6505, 839 N.E.2d 1, ¶ 6. “When a claim involves a fundamental
right or a suspect class, the government’s action is subject to a higher level of
scrutiny.” Id. Thus, the legislature and the Ohio Redistricting Commission should
bear the burden of explaining their actions when there is proof that they are acting
in violation of the equal protection and benefit guaranteed by the state Constitution.
Application of the Ohio A. Philip Randolph Inst. three-prong test to the evidence
and stipulations in this case follows.
{¶ 164} For the first prong, that the state acted with an intent to subordinate
adherents of one political party and entrench a rival party in power, intent “ ‘is

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rarely provable by direct evidence’ ” and “ ‘generally must be inferred from the
totality of the circumstances.’ ” Aztec Internatl. Foods, Inc. v. Duenas, 12th Dist.
Clermont No. CA2012-01-002, 2013-Ohio-450, ¶ 42, quoting Fairbanks Mobile
Wash, Inc. v. Hubbell, 12th Dist. Nos. CA2007-05-062, CA2007-05-068, 2009-
Ohio-558, ¶ 22; see, e.g., State ex rel. Floyd v. Formica Corp., 140 Ohio St.3d 260,
2014-Ohio-3614, 17 N.E.3d 547, ¶ 16. In a partisan-gerrymandering case, an intent
to dilute votes to entrench a party in power may be demonstrated by

the timeline and logistics of the map-drawing process, the map

drawers’ heavy use of partisan data, contemporaneous statements
made by the map drawers about their efforts, the characteristics of
the map itself (including the irregular shape of the districts, their
lack of compactness, and the high number of county and
municipality splits), and finally, the outlier partisan effects that the
map has produced since its enactment.

Ohio A. Philip Randolph Inst., 373 F.Supp.3d at 1099. The evidence discussed by
the majority supports the conclusion that the district plan adopted by the
commission was drawn purposely to entrench one political party’s power and
control over the General Assembly by diluting the votes of the other party’s voters.
See majority opinion at ¶ 121-123 (discussing the expert report of Dr. Michael
Latner). The adopted plan indisputably makes it easier for voters favoring one
major party, the Republican Party, to transform their votes into legislative seats
than it does for voters favoring the other major party, the Democratic Party. The
objective difference between the statewide preference of voters over the last ten
years and the ratio of Republican-leaning versus Democratic-leaning districts under
the plan adopted is evidence beyond a reasonable doubt of vote dilution through
gerrymandering.

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{¶ 165} The depositions of Drs. Latner, Kosuke Imai, and Jonathan Rodden
also plainly show that the Ohio Redistricting Commission could have drawn and
adopted maps that are compliant with the Ohio Constitution and that do not
impermissibly dilute the votes of either party for either chamber of the General
Assembly. See id. at ¶ 121-126.
{¶ 166} The process followed by the commission provides evidence of an
intent to entrench one party in power at the expense of voters supporting the other
party. The commission ceded its responsibility and power to the four members of
the legislative branch, and when adopting the final plan and the statement under
Article XI, Section 8(C)(2), it acquiesced to the two Republican leaders of the
General Assembly. In none of the meetings of the commission was any provision
made or any vote held to delegate the commission’s map-drawing duties to any
particular people. The commission did not hire an independent, nonpartisan map
drawer or use any of the dozens of other publicly submitted maps as a starting point.
Instead, funds were simply allocated to the legislative members of the commission
and their respective caucuses to use as they saw fit. While the minutes of the
commission reflect the adoption of rules on August 31, 2021, the rules did not
appear on the commission’s website, https://www.redistricting.ohio.gov/assets/
organizations/redistricting-commission/events/commission-meeting-august-31-
2021-16/ohio-redistricting-commission-rules.pdf (accessed Jan. 8, 2022)
[https://perma.cc/6C3U-3AV2], until after the passage of 2021 Sub.H.B. 92, which
enacted R.C. 3521.04, a statute providing for the creation of the commission’s
website. The effective date of R.C. 3521.04 was September 29, 2021—almost two
weeks after the commission had adopted the legislative redistricting plan that is the
subject of these actions.
{¶ 167} And when the Republican legislative leaders’ map was presented
for the commission’s review on September 9, 2021, the members of the commission
used that map as a starting point to negotiate between the opposing partisan

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caucuses of the legislature a ten-year map, while the executive branch of state
government was left to stand by benignly, encouraging the two parties’ leaders to
try to come to some meeting of the minds. Basically, the commission permitted
past decades’ business as usual and mapping behind closed doors, despite new and
specific constitutional provisions requiring a more fair and transparent process that
were adopted by the voters in order to create fair legislative districts.
{¶ 168} The commission even failed to use ten years of statewide data to
reach its determination of statewide proportions of somewhere between 54 and 81
percent Republican and 19 and 46 percent Democratic. The opposing partisan
caucuses of the legislature even negotiated what data actually was used to
determine the statewide proportion of votes between the parties, unconstitutionally
settling on four years’ worth, despite the constitutional requirement of ten years of
data. See Ohio Constitution, Article XI, Section 6(B). Ray DiRossi, Senate
President Matthew Huffman’s designee who performed map drawing for that
chamber of the legislature, referred in his deposition to consultants that he used in
the map-drawing process, stating, “My data consultant was Clark Benson, and my
technical consultant from [Ma]ptitude was John Morgan.” DiRossi testified that
during the map-drawing process, Morgan and Benson provided nonpublic data for
2012 and 2014 Democratic and Republican “vote percentages.” DiRossi explained
that this nonpublic data “made Maptitude work” but that the 2012 and 2014 data
were “ultimately not used,” because negotiations had begun on the September 9,
2021 map submitted to the commission by Senate President Huffman. Eventually
the opposing partisan caucuses of the legislature negotiated and agreed that only
election-results data from 2016, 2018, and 2020 were to be used by the commission.
This affected how the “statewide preferences of the voters of Ohio” was
determined—using a period of just four years—even though the Ohio Constitution
requires that the determination be based on “statewide state and federal partisan
general election results during the last ten years” and that the proportionality of the

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districts whose voters favor each political party “correspond closely to” that
statewide preference. Ohio Constitution, Article XI, Section 6(B). The
commission could have used ten years of data, but it did not—apparently because,
according to DiRossi, “negotiations” had started on the September 9, 2021 plan for
which four years of data had been used.
{¶ 169} The record indicates that ten years of data was at least consulted in
the mapmaking process by DiRossi and that the 2012 and 2014 data not used by
the commission was needed to make Maptitude work. Necessary and reliable data
is essential to accurate results. The parties here arbitrarily “negotiated” which data
they would rely on to determine the statewide proportion of voter preferences.
While Article XI, Section 6(B) directed the members of the commission to use
statewide state and federal partisan general election results during the last ten years,
there is no objective data or evidence in the record to support why they did not use
the data they had for the entire ten-year period.
{¶ 170} Consider the Ohio Court of Claims’ resolution of a reimbursement
dispute based on data completeness and accuracy between a charter school and the
Ohio Department of Education. The dispute involved the accuracy of the
department’s calculation of the school’s full-time equivalent number of students.
Finding for the school, the Court of Claims determined that the department had
failed to gather sufficient data to perform an accurate calculation. The court held
that without complete data, the department of education could not perform an
accurate “desk review.” Harmony Community School v. Ohio Dept. of Edn., 125
Ohio Misc.2d 42, 2003-Ohio-5312, 797 N.E.2d 1058 (Ct. of Cl.), ¶ 15-16. Here,
respondents’ failure to use ten years’ worth of election results to determine the
statewide preferences of the voters of Ohio without sufficient evidence to justify a
reason not to do so violated Article XI, Section 6(B) beyond a reasonable doubt.
{¶ 171} Based on the evidence discussed in the majority opinion, the Article
XI, Section 8(C)(2) statement introduced by Senate President Huffman evidences

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beyond a reasonable doubt an aim to favor Republican voters and disfavor

Democratic voters. The statement offered the figure of 81 percent of voters
favoring Republican statewide candidates as a measure of the “statewide
preferences of the voters of Ohio,” skimming the top line or total vote of Republican
to Democrat winners by political party in partisan statewide races during the last
ten years. Thus, with Republicans having won 81 percent of statewide contests in
the last ten years, the statewide proportion of voter preference could be as much as
81 percent, according to respondents. The OOC argues that under this commission
model, if the Republican Party won 100 percent of statewide elections with 50.1
percent of the vote, it would be a proportional outcome for Republicans to win 100
percent of General Assembly districts.
{¶ 172} The second element of the test—whether the plan has the effect of
substantially diluting votes for a group’s candidates—is also satisfied here beyond
a reasonable doubt based on the evidence previously discussed in this opinion and
relied on in the majority opinion. Dr. Latner’s proportionality analysis alone shows
that under the commission’s plan, statewide Democratic candidates’ vote totals will
not translate into representation at the same rate as will Republican candidates’ vote
totals. See majority opinion at ¶ 121-123.
{¶ 173} Finally, respondents in their various arguments have not
demonstrated that there is a legitimate, nonpartisan justification for their
redistricting plan. The evidence in the record demonstrates that the commission
could have drawn maps that were proportional and that did not disfavor one party
yet still complied with other requirements, such as the county- and city-split
requirements in Article XI, Sections 3 and 4. Respondents did not do this, and their
justification for why they did not, is not credible. In fact, not even all the members
of the commission believed that the Article XI, Section 8(C)(2) statement provided
justification for the readily apparent lack of close correspondence with statewide
voter preferences, see Ohio Constitution, Article XI, Section 6(B).

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{¶ 174} The plan violates petitioners’ rights to vote on equal terms and thus
violates the equal-protection guarantee of Article I, Section 2 of the Ohio
Constitution. As a result, the plan also violates Article XI, Section 3(B)(2), which
states that “[a]ny general assembly district plan adopted by the commission shall
comply with all applicable provisions of the constitutions of Ohio and the United
States.”
III. “Judicially manageable standards” for judging claims of gerrymandering
{¶ 175} The statewide officeholders, along with counsel for the
commission, argue that no judicially manageable standards exist to enable courts
to judge claims of gerrymandering under Article I, Section 2 or Article XI. In
particular, they assert that if a court cannot identify the “precise” line separating an
extreme gerrymander from one that is not extreme, then all gerrymandering must
be permitted, no matter how extreme. Their argument is tantamount to saying that
the electorate’s overwhelming 71 percent vote to pass Issue 1 in 2015 and thereby
amend Article XI to put an end to gerrymandering in Ohio basically has no bearing
on the need to end gerrymandering and that it lends no support to following the
state Constitution requiring a plan with a statewide proportion of districts that
closely corresponds to statewide voter preferences. But nothing in Article XI,
Section 6 even contemplates the type of precision on which respondents insist.
Section 6 requires an “attempt” based on standards of partisan fairness, statewide
proportionality, and compactness for evaluating the commission’s plan and requires
that the plan “closely correspond” with statewide voter preferences determined
according to votes cast over the preceding ten years.
{¶ 176} The expert evidence presented here and discussed in the majority
opinion provides this court with numerous ways of evaluating how closely the
redistricting plan meets these standards. Early federal caselaw applying the one-
person, one-vote rule has resulted in malapportioned maps being invalidated
without identifying a threshold for how much deviation from the 1-to-1 ratio

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between districts is permitted. See Reynolds v. Sims, 377 U.S. 533, 545-546, 84
S.Ct. 1362, 12 L.Ed.2d 506 (1964) (involving population-variance ratios of up to
41 to 1); Wesberry v. Sanders, 376 U.S. 1, 2, 84 S.Ct. 526, 11 L.Ed.2d 481 (1964)
(involving population-variance ratios of up to 3 to 1). When legislative maps
involve extreme gerrymandering, they, too, are invalid. And with respect to a
threshold, it is likewise appropriate to permit the development of “a body of
doctrine on a case-by-case basis” concerning maps drawn and adopted under
Article XI of the Ohio Constitution. See Reynolds at 578.
{¶ 177} Regarding Florida’s state districting scheme, the nation’s high
court stated in Rucho:

In 2015, the Supreme Court of Florida struck down that State’s

congressional districting plan as a violation of the Fair Districts
Amendment to the Florida Constitution. League of Women Voters
of Florida v. Detzner, 172 So.3d 363 (2015). The dissent wonders
why we can’t do the same. * * * The answer is that there is no “Fair
Districts Amendment” to the Federal Constitution.

Rucho at __, 139 S.Ct. at 2507, 204 L.Ed.2d 931.

{¶ 178} Like Florida and unlike the federal Constitution, the Ohio
Constitution contains provisions explicitly guaranteeing fair districts based on
statewide voter preferences as expressed by specified voting patterns during the last
ten years. This required proportionality between political parties was approved by
Ohio voters in 2015 when they adopted by popular vote the amendments to Article
XI of the Ohio Constitution. These state constitutional guarantees are enforceable
with or without enforceable principles of federal law, and this court, as the sole
repository of “exclusive, original jurisdiction in all cases arising under” those

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provisions, must see to it that they are enforced. Ohio Constitution, Article XI,
Section 9(A); see also Ohio Constitution, Article I, Section 2.
IV. Preventing gerrymandering in Ohio in the future
{¶ 179} Despite proponents’ and voters’ best intentions for systemic
government change in approving the ballot measure to amend the state Constitution
in 2015, the evidence shows that the leaders of the majority party in Ohio’s veto-
proof gerrymandered legislature managed to create a plan through the new
bipartisan (as opposed to independent) redistricting commission that would have
the effect of extending their party’s dominance in even more impactful ways than
in 2011— giving their party a supermajority of the legislature for another four
years—just by adopting the plan by a simple majority of the commission vote
without bipartisan support. What the dissents seem to be conceding, without
expressly saying so, is that the voters were “duped” when the legislature presented
them with a jointly recommended “bipartisan” proposed constitutional amendment
for their adoption. Under the rationale of the dissents, new Article XI has given
Republican legislators a “free pass” for four more years of outsized Republican
dominance not matching a voting proportionality that, in itself, was not determined
in conformity with constitutional requirements.
{¶ 180} The real takeaway from this four-year plan is that the Ohio
Redistricting Commission should not be composed of people for whom the
temptation may be too great to place political self-preservation above selfless
service, regardless of party affiliation. What is needed in Ohio is an independent
redistricting commission. Then, no matter who holds the pen, the district lines
drawn will more likely be fair and reflect population changes of the state over ten-
year swaths of time based on changes identified by the decennial United States
Census. What is an “independent redistricting commission”?

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An Independent Redistricting Commission (IRC) is a body

separate from the legislature that is responsible for drawing the
districts used in congressional and state legislative elections. In
most states, the state legislature is responsible for drawing and
approving electoral districts with a simple majority subject to a
gubernatorial veto. Because this process—known as redistricting—
generally involves political actors whose careers depend on how the
lines are drawn, both major political parties have used the process
to unfairly strip voters of their voice.
***
* * * The structure of IRCs var[ies] from state to state, but
IRCs are meant to make the redistricting process more transparent
and impartial by establishing standards for who can serve on the
commission and criteria that must be followed when drawing district
maps.

Effective IRCs require the commissioners to adhere to strict

criteria, such as complying with federal and state constitutions,
equal population, protecting language and racial minorities, partisan
fairness, compactness, and contiguity, among others. Effective
IRCs also require the commission to hold public hearings, make the
data being used to draw maps publicly available, accept public
comments, and allow voters to submit maps to the commission
online.

In 2018, voters in four states—Colorado, Michigan,

Missouri, and Utah—approved ballot measures creating IRCs, and
Ohio also passed a bipartisan redistricting reform measure. States

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such as Arizona, California, and Iowa also have commissions that

remove politicians from directly drawing the lines and that require
consensus.

Campaign Legal Center: Advancing Democracy through Law, Independent

Redistricting Commissions, https://campaignlegal.org/democracyu/accountability/
independent-redistricting-commissions (accessed Jan. 4, 2022)
[https://perma.cc/7PRS-P8FB].
{¶ 181} Other states have devised and adopted independent redistricting
commissions as the means to accomplish this higher calling for fair representation.
They have amended their state constitutions to require nonpartisan, citizen-led
redistricting commissions to implement constitutional formulas and methodologies
that stop elected officials from choosing their voters and that place voters in the
best position possible to fully choose their elected officials.
{¶ 182} Ohio’s redistricting efforts in 2021 were the first test of Ohio’s
“bipartisan commission” under Article XI. The plan we have reviewed was not
based on a fair process and perhaps could not have been, given the makeup of the
commission established by Article XI—and this does not seem to be lost on either
the majority or the dissenting justices. The stark differences among the views of
the members of this court regarding the court’s power to fashion a remedy bears
witness to the unworkability of Ohio’s new model. Since Ohio voters retain the
power to change their government by popular vote, perhaps this 2021 experiment
may supply motivation to do more.
{¶ 183} The people of Ohio, in exercising their inherent political power,
have on numerous occasions used the ballot box to effect the change they wish to
see in their government. They have reserved that power to themselves in the state’s

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Constitution. See Ohio Constitution, Article II, Section 1 (“but the people reserve
to themselves the power to propose to the general assembly laws and amendments
to the constitution, and to adopt or reject the same at the polls on a referendum vote
as hereinafter provided. They also reserve the power to adopt or reject any law,
section of any law or any item in any law appropriating money passed by the
general assembly, except as hereinafter provided; and independent of the general
assembly to propose amendments to the constitution and to adopt or reject the same
at the polls”); id. at Section 1a (“The first aforestated power reserved by the people
is designated the initiative, and the signatures of ten per centum of the electors shall
be required upon a petition to propose an amendment to the constitution”).
{¶ 184} When statewide petition drives result in statewide ballot measures
either to propose laws, stop laws from taking effect, or amend the very document
from which Ohio government flows, the Ohio Constitution, the legislative response
has often been to tighten the rules of populist engagement through the power of
legislation delegated to the legislature by the Constitution, making it harder
(perhaps unconstitutionally) for voters to exercise these reserved powers. See id.
at Section 1g (“The foregoing provisions of this section shall be self-executing,
except as herein otherwise provided. Laws may be passed to facilitate their
operation, but in no way limiting or restricting either such provisions or the powers
herein reserved”). Perhaps if Ohio voters choose to amend the state Constitution
once more—in favor of a truly independent redistricting commission—they should
also curb the power of the legislature to restrain their efforts through onerous and
oppressive legislation that effectively curbs ballot-issue access in the expression of
their freedoms of self-governance.
{¶ 185} One example of such an effort by Ohio voters—and a response by
the legislature designed to nullify that effort—can be seen in Ohioans’ attempt in
2011 and 2012 to repeal 2011 Am.Sub.H.B. No. 194 (“H.B. 194”), a
comprehensive bill designed to revise the election laws, including laws governing

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the constitutional initiative and referendum process. See

https://publicfiles.ohiosos.gov/free/publications/SessionLaws/129/129HB-194.pdf
(accessed Jan. 5, 2022). Ohioans opposed to H.B. 194 successfully obtained
enough signatures to have a statewide referendum on the repeal of the law on the
ballot for the November 2012 general election. See Terri L. Enns, Commentary:
Thoughts on HB 194 and Ohio’s Referendum Process (Apr. 3, 2012), available at
https://law.osu.edu/electionlaw/comments/index.php?ID=9075 (accessed Jan. 5,
2022) [https://perma.cc/J84G-38U8]. However, even though in December 2011,
“the Ohio Secretary of State certified that the referendum proponents had
successfully gathered the requisite number of valid signatures to place the bill onto
the November 2012 ballot,” id., the portions of H.B. 194 that had not taken effect
were repealed by the legislature in August of 2012 in Sub.S.B. No. 295, effective
August 15, 2012, before the November 2012 general election, see Ohio Legislative
Serv. Comm., Final Analysis Sub.S.B. 295, https://www.lsc.ohio.gov/
documents/gaDocuments/analyses129/12-sb295-129.pdf (accessed Jan. 8, 2022)
[https://perma.cc/7DD7-VXK2]. The referendum was not placed on the November
2012 ballot by the secretary of state, see cleveland.com, Ohio House votes to repeal
controversial election law (May 8, 2012), available at
https://www.cleveland.com/open/2012/05/ohio_house_votes_to_repeal_con.html
(accessed Jan. 3, 2022) [https://perma.cc/GY46-XD29] (“The unprecedented
nature of Tuesday’s action left some confusion over whether the referendum
would actually appear on the November ballot. Ohio Secretary of State Jon
Husted, a Republican, released a statement that said the legislature’s repeal of
HB 194 leaves no law to put before voters. ‘Referendums determine if laws
passed by the legislature should be upheld,’ Husted said in his statement. ‘With
the law at the heart of the referendum on HB 194 having been repealed, there is
no longer a question to place before the voters’ ”). Yet, and incredibly, portions
of the law contained in H.B. 194 were later reenacted by the legislature. See, e.g.,

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2013 Sub.S.B. No. 47 (enacting amendment to R.C. 3519.16 with the same
language from H.B. 194 that was repealed by 2012 Sub.S.B. 295, relating to
jurisdiction over challenges to petitions circulated pursuant to Article II, Section 1g
of the Ohio Constitution); see also Ohio Legislative Service Commission,
Document #262031, https://codes.ohio.gov/assets/laws/revised-code/authenticated
/35/3519/3519.16/6-21-2013/3519.16-6-21-2013.pdf (accessed Jan. 8, 2022)
[https://perma.cc/5PG6-2PSM]. Enough said.
V. Conclusion
{¶ 186} I concur in the majority’s determination that the Ohio Redistricting
Commission did not comply with Article XI, Section 6 and, for the reasons stated
above, I would further find that the redistricting plan violates Article XI, Section
3(B)(2). The evidence discussed above establishes that the violation of
Section 3(B)(2) is so significant that it clearly meets the standard for the remedy
set forth in Article XI, Section 9(D)(3)(c). Thus, Article XI, Section 9(B) requires
that the commission be reconstituted to adopt a plan in conformity with the Ohio
Constitution for the reasons stated by the majority and in this opinion.
_________________
KENNEDY, J., dissenting.
{¶ 187} Article XI of the Ohio Constitution gives this court an important
but limited role in reviewing a General Assembly-district plan. The majority today,
though, finds the constitutionally imposed limits unduly constraining, so it chooses
to disregard them. But in my view, in determining whether the General Assembly–
district plan is constitutional, we must apply the Ohio Constitution as it is written.
{¶ 188} Article XI seeks to incentivize compromise by providing that a
district plan with bipartisan support shall remain in effect for ten years, while one
that lacks such support shall remain in effect for only four years. It imposes a set
of neutral map-drawing requirements that the Ohio Redistricting Commission must
absolutely meet, including, for example, population requirements and restrictions

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on the division of political subdivisions. Article XI, Sections 2, 3, 4, 5, and 7, Ohio

Constitution. It also requires the commission to comply with all applicable
provisions of the Ohio and United States Constitutions and federal law, including
the federal Voting Rights Act, 52 U.S.C. 10101 et seq., 10301 et seq., 10501 et seq.,
and 10701 et seq. Article XI, Section 3(B)(2). In addition, it provides directory
requirements that the drafters “shall attempt” to meet, including that no “plan shall
be drawn primarily to favor” a political party and that the proportion of districts
that “favor each political party shall correspond closely to the statewide preferences
of the voters of Ohio.” Id. at Section 6(A) and (B).
{¶ 189} Article XI is explicit in detailing this court’s authority. Article XI,
Section 9(D)(3) provides that “[i]f the supreme court of Ohio determines that a
general assembly district plan adopted by the commission does not comply with
[the neutral map-drawing criteria provided in] Section 2, 3, 4, 5, or 7,” it may
invalidate the plan in whole or in part. Conspicuously absent from this list of
violations for which this court may invalidate a plan—a list that includes all the
neutral map-drawing requirements and constitutional and federal statutory
protections for voter rights—is the failure to meet the directives set forth in Article
XI, Section 6 relating to attempts to avoid partisan favoritism and to create a
statewide proportion of districts that closely corresponds to the statewide
preferences of Ohio voters.
{¶ 190} Instead of applying the inconvenient textual limits on this court’s
authority set forth in Section 9(D)(3), the majority ignores them in favor of its own
policy preferences. The majority then rewrites the plain language of Section 9(B),
which provides for the reconstitution of the commission after a plan has been found
invalid, to make itself the object of the provision and grant this court sweeping
authority to review any challenge to the General Assembly-district plan, even
without a predicate violation of Section 2, 3, 4, 5, or 7. But Section 9(B) has nothing
to do with judicial review. That section simply provides that after this court or a

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federal court decides that a redistricting plan is invalid, the commission is

reconstituted as a matter of law and must adopt a new plan. Because Section 9(B)
does not address any action that a court is required to take, it cannot be an
independent source of judicial power to review and invalidate a plan.
{¶ 191} Lastly, any claim that the General Assembly-district plan violates
the rights to equal protection, freedom of speech, and freedom of assembly as
guaranteed by the Ohio Constitution is not well taken. Nothing in the text of the
Ohio Constitution or our precedent provides support for the proposition that
proportional representation in the General Assembly is constitutionally required.
And on its face, the plan does not limit speech or deny Ohio voters the ability to
associate.
{¶ 192} Because in my view our authority as members of the judiciary is
limited by the Ohio Constitution, I dissent.20
I. BACKGROUND
A. Overview of General Assembly Redistricting in Ohio
{¶ 193} In December 2014, the General Assembly adopted Am.Sub.H.J.R.
No. 12, which placed on the ballot an amendment to the Ohio Constitution
establishing a new process for drawing Ohio’s General Assembly districts. The
amendment would replace the Ohio Apportionment Board with the Ohio
Redistricting Commission, comprised of the governor, the auditor of state, the
secretary of state, one person appointed by the speaker of the House of
Representatives, one person appointed by the House minority leader, one person
appointed by the Senate president, and one person appointed by the Senate minority

20. The second dissenting opinion would decide this case by addressing the supplemental question
posed by this court regarding whether a four-year plan adopted pursuant to Article XI, Section
8(C)(1)(a) may be challenged in this court. However, because this case may be resolved by
answering the propositions of law originally presented, it is not necessary to reach that question
today.

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leader. Although the ballot language indicated a “goal” of producing Ohio House
and Senate districts that are more politically competitive and drawn in a bipartisan
process, the amendment entrusted the role of drawing district maps to partisan
elected officials. The people of Ohio ratified the amendment in November 2015.
{¶ 194} As amended, Article XI recognizes that it is difficult, if not
impossible, to wholly divorce partisanship from the redistricting process and that
the members of the redistricting commission from the two major political parties
might not be able to agree on a General Assembly–district plan. It therefore
provides that a district plan may be adopted by a party-line vote of the commission.
See Article XI, Section 8(C), Ohio Constitution. But when the majority vote does
not include at least two members from each of the two largest political parties in
the General Assembly, the plan remains in effect for a shortened period—until two
general elections for the House of Representatives have occurred under the plan.
Id. at Section 8(C)(1)(a). Article XI therefore expressly contemplates that a plan
that favors one political party over the other might be adopted, but it encourages
bipartisanship by limiting the amount of time that one party’s plan is in effect—
putting partisan advantage today at the risk of partisan disadvantage tomorrow.
{¶ 195} The Ohio Constitution controls how the redistricting commission
may draw a district plan by imposing mandatory requirements for the commission
to follow in drawing districts’ boundaries. Article XI, Section 2 of the Ohio
Constitution provides that there may be only one representative in each House
district and one senator in each Senate district, preventing at-large voting. The
process that the commission must use in drawing district maps requires that each
district be composed of contiguous territory with a boundary consisting of a single,
nonintersecting, continuous line. Id. at Section 3(B)(3).
{¶ 196} The redistricting commission must determine the number of people
who will be represented in each House and Senate district and the number of
districts that each county may contain. Id. at Section 3(A). This is accomplished

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by dividing the total population of the state (here, 11,799,448 according to the 2020
federal decennial census) by 99 for House districts (the result of which is
119,186.34) and by 33 for Senate districts (the result of which is 357,559.03). Id.
Each House and Senate district must contain a population between 95 percent and
105 percent of those amounts, respectively. Id. at Section 3(B)(1). Then, starting
from the most populous county and proceeding to the least populous, the
commission draws the districts. Id. at Section 3(C)(1). For example, Franklin
County, the most populous county, has a population of 1,323,807 according to the
2020 federal decennial census; dividing its population by 119,186.34 yields 11.107
House districts (that is, 11 House districts wholly within the county with a small
fraction of the county sharing a district with another county). That small fraction
of the population may be made part of only one adjoining House district. See id.
In contrast, Wayne County has a population of 116,894 according to the 2020
federal decennial census, which is less than 119,186.34, which yields 0.98 House
districts. Nonetheless, Wayne County gets its own district because its population
falls between 95 percent and 105 percent of 119,186.34. See id. at Section 3(C)(2).
And Miami County, the first county with a population less than 95 percent of
119,186.34, must share a district with an adjoining county or counties. See id. at
Section 3(C)(3) (“The remaining territory of the state shall be divided into
representative districts by combining the areas of counties, municipal corporations,
and townships. Where feasible, no county shall be split more than once”). Article
XI also requires the commission to draw House districts in a way that minimizes
the division of municipal corporations and townships. Id. at Section 3(D)(2) and
(3).
{¶ 197} Senate districts are comprised of three contiguous House districts.
Article XI, Section 4(A), Ohio Constitution. Like House districts, counties that are
populous enough to have at least one whole Senate district must have as many
whole Senate districts as its Senate ratio of representation permits, with any fraction

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of that ratio made part of only one adjoining district. Id. at Section 4(B)(1).
“Counties having less than one senate ratio of representation, but at least one house
of representatives ratio of representation, shall be part of only one senate district.”
Id. at Section 4(B)(2). If the commission is not able to comply with these
requirements, the plan does not violate Section 4(B)(1) and (2) if the commission
draws the Senate districts “so as to commit the fewest possible violations of those
divisions.” Id. at Section 4(B)(3).
{¶ 198} Article XI, Section 5 provides the procedure followed when a new
General Assembly–district plan results in a changed Senate-district boundary of a
senator whose term will not expire within two years of the time that the plan
becomes effective. And under Article XI, Section 7, the plan must also use the
boundaries of counties, municipal corporations, and townships “as they exist[ed] at
the time of the federal decennial census on which the redistricting is based, or, if
unavailable, on such other basis as the general assembly has directed.”
{¶ 199} Article XI, Section 6 directs the commission to “attempt” to draw
a General Assembly–district plan without the primary purpose of favoring or
disfavoring a political party, id. at Section 6(A), and in which the statewide
proportion of districts favoring one political party corresponds closely to the
statewide preferences of Ohio voters, id. at Section 6(B). It also directs the
commission to attempt to draw compact districts. Id. at Section 6(C). However,
the attempt to comply with Section 6 may not result in violations of Article XI,
Section 2, 3, 4, 5, or 7. Article XI, Section 6.
{¶ 200} Article XI, Section 1(B)(3) states that “[t]he affirmative vote of
four members of the commission, including at least two members of the
commission who represent each of the two largest political parties represented in
the general assembly shall be required to adopt any general assembly district plan.”
If the commission’s vote satisfies Section 1(B)(3), then the plan is effective for ten
years. However, if the commission fails to adopt a plan by the requisite bipartisan

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vote by September 1 of a year ending in the numeral one, it “shall introduce a

proposed general assembly district plan by a simple majority vote of the
commission.” Article XI, Section 8(A)(1), Ohio Constitution. The commission
must then conduct a public hearing on the proposed plan, id. at Section 8(A)(2),
and then adopt the plan by either a bipartisan vote or a simple majority, id. at
Section 8(A)(3). If the plan is adopted by the bipartisan vote required to adopt a
plan under Article XI, Section 1(B)(3), then the plan is effective for ten years. Id.
at Section 8(B). But if the plan is adopted by a simple majority of the commission
that does not include at least two members from each of the two largest political
parties in the General Assembly, the plan “shall remain effective until two general
elections for the house of representatives have occurred under the plan.” Id. at
Section 8(C)(1)(a).
B. The Commission Adopts a Four-Year Plan
{¶ 201} In his statements before the redistricting commission and in his
testimony during his deposition, Ray DiRossi explained that as he helped to draw
the maps, he sought first to comply with the mandatory requirements of Article XI.
This focus included the required population of each district, contiguity
requirements, and minimizing the division of counties, cities, and townships. The
plan started with the most populous counties and proceeded to the least populous
counties, and it split counties when required by the Constitution but otherwise
minimized the division of political subdivisions. Ohio’s political geography,
however, made it difficult to draw the maps, and that sometimes had a negative
impact on Republican officeholders because it paired incumbents in the same
district. DiRossi explained that he had not been tasked with considering the
partisan makeup of each district, because that responsibility belonged to the
commission. DiRossi noted that he did not consider the partisan makeup of the
districts until President of the Senate Matthew Huffman, in search of a compromise
in which the commission would adopt a ten-year plan by a bipartisan vote,

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instructed DiRossi to switch certain districts that leaned Republican so that they
leaned Democratic.
{¶ 202} Similarly, Blake Springhetti, who also worked on drafting the
district maps, explained that Speaker of the House Robert Cupp had sought a
compromise by creating more Democratic-leaning districts and adopting the
Democratic members’ priorities, such as maintaining Cincinnati in three districts
and Dayton in two districts. House Speaker Cupp and Senate President Huffman
therefore proposed a plan that created five more Democratic-leaning districts.
House Speaker Cupp expected that the plan would comply with Article XI, Section
6 due to his negotiations with the Democratic members of the commission.
{¶ 203} In the end, the attempts at compromise failed and the proposed plan
that would have created more Democratic-leaning districts was not adopted. The
votes in favor of the plan did not include at least two members of the commission
from each of the two major political parties represented in the General Assembly.
C. Challenges to the District Plan
{¶ 204} This matter involves three separate complaints. In the first two
complaints, petitioners the League of Women Voters of Ohio et al., and Bria
Bennett et al., allege that the plan that the commission adopted violates Article XI,
Section 6(A) and (B) of the Ohio Constitution. Those complaints do not allege that
the plan violates any other provision of Article XI. In the third complaint, the Ohio
Organizing Collaborative, the Ohio chapter of Council on American-Islamic
Relations, the Ohio Environmental Council, and the individual petitioners
(collectively, the “OOC”) allege that in addition to violating Sections 6(A) and
6(B), the plan that the commission adopted violates Article XI, Section 3(B)(2) and
the Ohio Constitution’s guarantees of equal protection under Article I, Section 2,
assembly under Article I, Section 3, and free speech under Article I, Section 11.
{¶ 205} This case presents two issues for this court’s consideration: Does
Article XI grant this court the authority to invalidate a General Assembly–district

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plan based on stand-alone violations of Article XI, Section 6? And has the OOC
demonstrated that the commission violated Article XI, Section 3(B)(2) and the Ohio
Constitution’s guarantees of equal protection, assembly, and free speech? The
answer to both of those questions is no.
II. ANALYSIS
A. Interpreting the Constitution
{¶ 206} “The purpose of our written Constitution is to define and limit the
powers of government and secure the rights of the people.” Cleveland v. State, 157
Ohio St.3d 330, 2019-Ohio-3820, 136 N.E.3d 466, ¶ 16 (lead opinion). Its
language controls, as written, unless it is changed by the people through the
amendment procedures established by Article XVI of the Ohio Constitution. The
Ohio Constitution is the paramount law of this state, and we recognize that its
framers chose its language carefully and deliberately, employed words in their
natural sense, and intended what the words said. See Gibbons v. Ogden, 22 U.S. 1,
188, 6 L.Ed. 23 (1824); Lawnwood Med. Ctr., Inc. v. Seeger, 990 So.2d 503, 510
(Fla.2008).
{¶ 207} Therefore, in construing the Ohio Constitution, our duty is to
determine and give effect to the meaning expressed in its plain language, State ex
rel. LetOhioVote.org v. Brunner, 123 Ohio St.3d 322, 2009-Ohio-4900, 916 N.E.2d
462, ¶ 50, and “ ‘[w]here the meaning of a provision is clear on its face, we will not
look beyond the provision in an attempt to divine what the drafters intended it to
mean,’ ” Toledo City School Dist. Bd. of Edn. v. State Bd. of Edn., 146 Ohio St.3d
356, 2016-Ohio-2806, 56 N.E.3d 950, ¶ 16, quoting State ex rel. Maurer v.
Sheward, 71 Ohio St.3d 513, 520-521, 644 N.E.2d 369 (1994). We give undefined
words in the Constitution their usual, normal, or customary meaning, Toledo City
School Dist. Bd. of Edn. at ¶ 16, and we may go beyond the text to consider other
sources of meaning, such as the purpose of an amendment, the history of its
adoption, or its attending circumstances, only “when the language being construed

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is ‘obscure or of doubtful meaning,’ ” State ex rel. Wallace v. Celina, 29 Ohio St.2d

109, 112, 279 N.E.2d 866 (1972), quoting Cleveland v. Bd. of Tax Appeals, 153
Ohio St. 97, 103, 91 N.E.2d 480 (1950). See also Maurer at 522 (“we will not look
to the history of a provision where * * * the language of the provision is clear”).
{¶ 208} Interpreting the constitutional provisions at issue here is complex.
It requires this court to examine, independently and in context, various sections that
cross-reference one another. In considering petitioners’ claims that the General
Assembly-district plan adopted by the commission violates Article XI, Section 6,
the initial focus is on three provisions establishing our power to review and
invalidate the plan: Article XI, Sections 9(A), 9(B), and 9(D).
B. Reviewability of a General Assembly-District Plan
1. Article XI, Section 9(A)
{¶ 209} Article XI, Section 9(A) vests this court with “exclusive, original
jurisdiction in all cases arising under this article.” This general grant of subject-
matter jurisdiction establishes that this court is the proper forum to hear a challenge
to a General Assembly-district plan. The question is: When does this court have
the authority to exercise judicial review over a case arising under this article?
2. Article XI, Section 9(B)
{¶ 210} The majority claims to find the answer in Article XI, Section 9(B).
That provision states:

In the event that any section of this constitution relating to

redistricting, any general assembly district plan made by the Ohio
redistricting commission, or any district is determined to be invalid
by an unappealed final order of a court of competent jurisdiction
then, notwithstanding any other provisions of this constitution, the
commission shall be reconstituted as provided in Section 1 of this
article, convene, and ascertain and determine a general assembly

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district plan in conformity with such provisions of this constitution

as are then valid, including establishing terms of office and election
of members of the general assembly from districts designated in the
plan, to be used until the next time for redistricting under this article
in conformity with such provisions of this constitution as are then
valid.

{¶ 211} According to petitioners and the majority, this provision, standing

alone, gives this court unlimited authority to review any alleged violation of Article
XI in the adoption of a General Assembly-district plan. I disagree.
{¶ 212} Reliance on Article XI, Section 9(B) as a source of judicial power
is unavailing. Grammatically speaking, the subject of this provision is the
redistricting commission, not this court or any court. It simply states that if the
General Assembly-district plan is invalidated in whole or in part by a court, then
the redistricting “commission shall be reconstituted” to adopt a new plan. Id.
{¶ 213} Nothing in that language represents an affirmative grant of power
to this court—or any other court of competent jurisdiction—to invalidate a four-
year plan adopted under Article XI, Section 8(C)(1)(a). Section 9(B) exists because
“[f]our weeks after the adoption of a general assembly district plan or a
congressional district plan, whichever is later, the commission shall be
automatically dissolved.” Article XI, Section 1(C), Ohio Constitution. Section
9(B) is not directed at any court at all, and it does not create any remedy that this
court can order. Rather, Section 9(B) is self-executing, reconstituting the
commission by operation of law and telling the commission what to do “[i]n the
event”—i.e., after—a plan has been invalidated by a court. Therefore, Section 9(B)
is not triggered unless some court of competent jurisdiction first decides that the
plan adopted by the commission is unconstitutional. Until that happens, Section

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9(B) is inoperative, and an inoperative provision plainly cannot be a source of

judicial power.
{¶ 214} Contrary to the majority’s chicken-or-egg approach, then,
invalidation of the plan under some other provision of state or federal law must
always come first before Article XI, Section 9(B) comes into play to reconstitute
the commission to prepare a new plan. The majority points to no valid doctrine of
constitutional interpretation that would permit us to assume that the game-changing
power wielded by the majority today is secreted in a provision in which a court is
not even the subject of the provision. Instead, the no-elephants-in-mouseholes
canon teaches us that fundamental details of a statutory or constitutional scheme
are not concealed in vague terms or ancillary provisions like Section 9(B). See
Bostock v. Clayton Cty., Georgia, ___ U.S. ___, ___, 140 S.Ct. 1731, 1753, 207
L.Ed.2d 218 (2020), citing Whitman v. Am. Trucking Assns., Inc., 531 U.S. 457,
468, 121 S.Ct. 903, 149 L.Ed.2d 1 (2001).
{¶ 215} In crafting its “broad” power from the language of Section 9(B),
majority opinion at ¶ 93, the majority fails to appreciate the impact that a similar
provision has on the force of its argument. Like Section 9(B), Article XI, Section
8(D) requires the commission to be reconstituted by operation of law. But in
contrast to Section 9(B), Section 8(D) does not depend on judicial action to trigger
it. Rather, Section 8(D) comes into force when a four-year plan adopted pursuant
to Section 8(C)(1)(a) expires. It cannot be reasonably asserted that this exact same
language—which does not require judicial action in Section 8(D)—can be a source
of judicial power in Section 9(B).
3. Article XI, Section 9(D)
{¶ 216} It might be inconvenient for the majority, but the plain language of
Article XI, Section 9(D) limits our authority to review General Assembly-district
plans. Section 9(D)(1) prohibits this court from ordering “the implementation or
enforcement of any general assembly district plan that has not been approved by

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the commission in the manner prescribed by this article.” Section 9(D)(2) denies
this court the power to “order the commission to adopt a particular general assembly
district plan or to draw a particular district.” And Section 9(D)(3) provides the
remedies available when this court determines that a plan “does not comply with
the requirements of Section 2, 3, 4, 5, or 7 of” Article XI, which includes the neutral
map-making requirements and all applicable provisions of the Ohio and United
States Constitutions and federal law.

(a) If the court finds that the plan contains one or more
isolated violations of those requirements, the court shall order the
commission to amend the plan to correct the violation.
(b) If the court finds that it is necessary to amend not fewer
than six house of representatives districts to correct violations of
those requirements, to amend not fewer than two senate districts to
correct violations of those requirements, or both, the court shall
declare the plan invalid and shall order the commission to adopt a
new general assembly district plan in accordance with this article.

(Emphasis added.) Article XI, Section 9(D)(3), Ohio Constitution. This specific
remedy stands in stark contrast to the lack of any remedial language in Sections
9(A) and (B).
{¶ 217} Section 9(D)(3)(a) therefore authorizes this court to invalidate a
General Assembly-district plan, but only if we first determine that the plan violates
Article XI, Section 2, 3, 4, 5, or 7. If violations of Section 6 were intended to be
actionable, one would naturally expect Section 9(D) to say so. But that language
is conspicuously absent.
{¶ 218} Notwithstanding this specific remedial provision, the majority
claims that “Section 9(B) recognizes this court’s authority to determine whether a

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plan is invalid for any reason and specifies what must happen if it does.” (Emphasis
sic.) Majority opinion at ¶ 98. Yet, couched in a footnote, it pulls back from that
assertion of power, saying that Section 9(D)(3) nonetheless “limits” the court’s
“otherwise broad authority” with respect to violations of Section 2, 3, 4, 5, or 7,
majority opinion at ¶ 96, fn. 11, so that “Section 9(D) provides specific remedies
for some violations of Article XI,” (emphasis sic) id. at ¶ 97. What the majority
discounts as “some violations” refers to the neutral map-making requirements—the
core function of Article XI—and all applicable provisions of the Ohio Constitution,
the United States Constitution, and federal law, which are incorporated by Article
XI, Section 3(B)(2). This supposed “limit” on our “otherwise broad authority”
includes practically all claims typically brought in voting-rights litigation and
redistricting challenges, such as those premised on equal protection; the rights to
freedom of speech, association, and assembly; one-person, one-vote; the
prohibition on racial gerrymandering; and the requirements of the Voting Rights
Act.
{¶ 219} Plainly, little is left for the court to evaluate under its “otherwise
broad authority” to declare a district plan invalid without a predicate violation of
Article XI, Section 2, 3, 4, 5, or 7. What the majority calls the “limited” provision,
majority opinion at ¶ 97, is in fact more expansive than what it calls its “otherwise
broad authority,” id. at ¶ 96, which must be limited to remedying violations of
Sections 1, 6, 8, and 9. Indeed, under the majority’s reading, this court would have
more power to invalidate a General Assembly-district plan when the plan does not
violate Section 2, 3, 4, 5 or 7 than when the plan does violate one or more of those
sections.
{¶ 220} And because its “otherwise broad authority” can possibly apply
only to violations of Article XI, Sections 1, 6, 8, and 9, the majority would
presumably permit this court to strike down a plan for a technical violation of any
of those provisions, even if that violation had no palpable effect on the plan itself

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and did not violate any constitutional or federal voter-rights protections. For
example, Article XI, Section 1(C) requires the governor to convene the first
meeting of the redistricting commission, but under the majority’s reasoning, a
violation of this provision (e.g., by another commissioner convening the meeting)
would justify the invalidation of a General Assembly-district plan. Similarly, the
failure to “promptly” file the plan with the secretary of state could permit this court
to invalidate it as well. Article XI, Section 1(C). And as the majority points out in
a footnote, the commission adopted the plan at issue here in violation of Article XI,
Section 8(A)(3), which requires that a Section 8(C)(1)(a) plan be adopted “not later
than the fifteenth day of September of a year ending in the numeral one.”
Technically, using its “otherwise broad authority,” the majority could have used
this violation to invalidate the General Assembly-district plan because it was
adopted a day late—on September 16, 2021.
{¶ 221} But would any plain reading of the provisions of Article XI of the
Ohio Constitution afford this court such “otherwise broad authority”? The answer
is “no.” But that is the logical consequence of the majority’s analysis and the
sweeping power of judicial review that the majority grasps to declare a General
Assembly-district plan invalid under Article XI, Section 6. Were Article XI
intended to afford this court unlimited judicial review, then it would have said so.
But like the date by which the General Assembly is directed to adopt a General
Assembly-district plan (“not later than the fifteenth day of September of a year
ending in the numeral one,” Article XI, Section 8(A)(3)), Section 6, as discussed
below, is merely directory.
{¶ 222} Article XI, Section 9(D)(3)(c) provides this court with additional
authority to remedy a district plan adopted by the commission through the impasse
procedure:

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If, in considering a plan adopted under division (C) of

Section 8 of this article, the court determines that both of the
following are true, the court shall order the commission to adopt a
new general assembly district plan in accordance with this article:
(i) The plan significantly violates those requirements in a
manner that materially affects the ability of the plan to contain
districts whose voters favor political parties in an overall proportion
that corresponds closely to the statewide political party preferences
of the voters of Ohio, as described in division (B) of Section 6 of
this article.
(ii) The statewide proportion of districts in the plan whose
voters, based on statewide state and federal partisan general election
results during the last ten years, favor each political party does not
correspond closely to the statewide preferences of the voters of
Ohio.

(Emphasis added.)
{¶ 223} The existence of this provision further showcases how impossible
it is to square the majority’s position with the words of the Constitution. If the
majority is correct that Article XI, Section 9(B) grants this court authority to
remedy stand-alone violations of Section 6 when the redistricting commission does
not make an attempt at proportional representation, then why does Section
9(D)(3)(c) require a predicate violation of Section 2, 3, 4, 5, or 7 before this court
can strike down a district plan for actually failing to provide proportional
representation? To ask the question is to answer it.
{¶ 224} There are two prerequisites that must be satisfied before this court
can reach the question whether the General Assembly-district plan is
disproportionate to the statewide political-party preferences of Ohio voters. See

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Article XI, Section 9(D)(3)(c)(ii). First, the plan must violate the requirements of
Section 2, 3, 4, 5, or 7, and second, the plan must “significantly violate[] those
requirements in a manner that materially affects the ability of the plan to contain
districts whose voters favor political parties in an overall proportion that
corresponds closely to the statewide political party preferences of the voters of
Ohio, as described in division (B) of Section 6 of this article.” Article XI, Section
9(D)(3)(c)(i).
{¶ 225} This language, which limits the court’s authority to invalidate a
General Assembly-district plan, cannot be reconciled with the majority’s assertion
that a plan may be invalidated solely because the commission failed to attempt to
adopt a plan in which “[t]he statewide proportion of districts whose voters, based
on statewide state and federal partisan general election results during the last ten
years, favor each political party shall correspond closely to the statewide
preferences of the voters of Ohio,” Article XI, Section 6(B).
{¶ 226} As written, Article XI, Section 9(D)(3)(c)(i) refers to Section 6(B)
for descriptive and definitional purposes, not as a separate grant of judicial authority
to invalidate a General Assembly-district plan. For in the end, the actual language
of Section 9(D)(3)(c)(i) refers to proportionality “as described in division (B) of
Section 6” (emphasis added), not as required in division (B) of Section 6. Section
9(D)(3)(c) provides that a plan that fails to provide proportional representation is
not reviewable absent a predicate violation of Section 2, 3, 4, 5, or 7 that materially
affects the ability of the plan to provide proportional representation. Were any
violation of Article XI intended to be actionable, including the failure to attempt to
draw a proportional plan, Section 9(D)(3) would have been written differently.
{¶ 227} In sum, contrary to the majority’s constitutional construction, the
negative implication of Article XI, Section 9 is obvious. Section 9(D) is a provision
that limits the authority of this court in reviewing a General Assembly-district plan.
It prohibits this court from ordering the commission to adopt a specific plan and

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from drawing the districts ourselves. And that same provision provides that this
court may invalidate a General Assembly district-plan in whole or in part only if
we first find a violation of Article XI, Section 2, 3, 4, 5, or 7. Reading the words
adopted by the people of this state in context leads to the inescapable conclusion
that the existence of a specific remedy in Section 9(D)(3) necessarily implies the
exclusion of all others. See Scalia & Garner, Reading Law: The Interpretation of
Legal Texts 107 (2012).
{¶ 228} The majority’s holding that Section 9(A) and (B) confer raw
judicial power to address the universe of ways that a plan can violate state and
federal law—without ever saying so—baldly renders the specific, targeted remedies
actually provided by the Ohio Constitution in Article XI, Section 9(D) wholly
superfluous. However, we have long held that “effect should be given to every part
of the instrument as amended, and in the absence of a clear reason to the contrary
no portion of a written Constitution should be regarded as superfluous.” Steele,
Hopkins & Meredith Co. v. Miller, 92 Ohio St. 115, 120, 110 N.E. 648 (1915).
4. The Majority’s Other Interpretive Arguments
{¶ 229} The majority resorts to the in pari materia canon of construction in
an attempt to read Article XI, Section 9(B) as extending judicial review beyond that
provided by Section 9(D). The in pari materia rule applies when some doubt or
ambiguity exists in an instrument. See Herman v. Klopfleisch, 72 Ohio St.3d 581,
585, 651 N.E.2d 995 (1995). But the majority points to no ambiguity in Section
9(B) or (D)(3), nor can it. Instead, it recasts its disregard of constitutional language
as merely “harmoniz[ing] Section 9(B) and Section 9(D)(3),” majority opinion at
¶ 96. It concludes that these provisions address different violations of Article XI
and provide different remedies: “Section 9(B) contemplates that this court may
declare a plan invalid and order the commission to adopt an entirely new plan.
Section 9(D)(3) speaks to certain violations of Article XI and gives this court
remedial options other than declaring a plan entirely invalid.” (Emphasis added.)

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Majority opinion at ¶ 96. But those statements mischaracterize the remedy afforded
by Section 9(D)(3), because Section 9(D)(3)(a) and (b) permit this court to both
order the commission to amend the plan to correct isolated violations and “to
declare the plan invalid and * * * order the commission to adopt a new general
assembly district plan.” (Emphasis added.) Article XI, Section 9(D)(3)(b)
expressly permits this court to declare a plan invalid in its entirety, which is why it
authorizes this court to order the adoption of a new plan rather than merely an
amendment to the old one. Even under the majority’s reading of these provisions,
Section 9(B) adds nothing to the remedies afforded by Section 9(D)(3).
{¶ 230} Although the majority is correct that the context of these provisions
matters, “[l]et us not forget, however, why context matters: It is a tool for
understanding the terms of the law, not an excuse for rewriting them.” (Emphasis
sic.) King v. Burwell, 576 U.S. 473, 501, 135 S.Ct. 2480, 192 L.Ed.2d 483 (2015)
(Scalia, J., dissenting).
{¶ 231} Lastly, the majority’s comparison of Article XI, Section 9 to former
Article XI, Section 13 undermines its own reasoning. Former Section 13 was silent
on the scope of this court’s review of a General Assembly-district plan. It stated
only that “[t]he Supreme Court of Ohio shall have exclusive, original jurisdiction
in all cases arising under this Article.” Article XI, Section 13, Ohio Constitution
(repealed 2015). In contrast, Section 9(D) of the current version of Article XI
places express limits on our review by requiring the finding of a violation of Section
2, 3, 4, 5, or 7 before this court may invalidate a plan. It is therefore not reasonable
to conclude that Section 9 provides the same authority to invalidate a plan as former
Section 13 when Section 9 now expressly constricts this court’s review. After all,
the use of different words signals a different meaning. See Obetz v. McClain, 164
Ohio St.3d 529, 2021-Ohio-1706, 173 N.E.3d 1200, ¶ 21.
{¶ 232} Therefore, the majority’s assertion that Article XI, Section 6 is
independently enforceable is wrong. And if one needs more evidence that Article

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XI, Section 6 is not enforceable than that provided by text alone, one simply needs
to look at the structure of Article XI in addition to the text. See Ramos v. Louisiana,
___ U.S. ___, ___, 140 S. Ct. 1390, 1395, 206 L.Ed. 2d 583 (2020) (relying on
“text and structure” as primary tools of constitutional interpretation).
C. The Structure of Article XI Reinforces the Conclusion that
Violations of Section 6 Are Not Judicially Enforceable
{¶ 233} The structure of Article XI reinforces what is evident from a plain
reading of the text—violations of Section 6 were never intended to be redressable
by the judiciary.
{¶ 234} Central to Article XI is the idea that the political branches of
government must play the dominant role when it comes to legislative mapmaking.
Section 1(A) flatly provides that “[t]he Ohio redistricting commission shall be
responsible for the redistricting of this state for the general assembly.” Section
9(D)(1) reinforces this command, providing that “[n]o court shall order, in any
circumstance, the implementation or enforcement of any general assembly district
plan that has not been approved by the commission in the manner prescribed by
this article.” (Emphasis added.) And if the point is not clear enough, Section
9(D)(2) adds that “[n]o court shall order the commission to adopt a particular
general assembly district plan or draw a particular district.”
{¶ 235} Pursuant to this approach, Article XI offers a political, rather than
a judicial, mechanism to resolve the lack of partisan agreement about a plan. If
there is partisan consensus around a plan, the plan will last ten years. Article XI,
Section 1(B)(3). But if the parties cannot agree, the default is not necessarily
judicial intervention; rather, the outcome is that a plan will last only four years,
Article XI, Section 8(C), unless this court determines that the plan violates the
neutral map-drawing requirements of Sections 2, 3, 4, 5, and 7, or violates an
applicable provision of the Ohio Constitution, the United States Constitution, or
federal law. Article XI, Section 9(D)(3). This was a historic change in Ohio

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redistricting, because as far back as 1851, Article XI stated that “[t]he

apportionment of this State for members of the General Assembly, shall be made
every ten years.” Article XI, Section 1, Ohio Constitution (1851). The official
ballot language for the proposed constitutional amendment in 2015 reflected that
the threat of a four-year plan was meant to foster bipartisanship; the ballot language
stated that Article XI would “prevent deadlock by limiting the length of time any
plan adopted without bipartisan support is effective.” Ballot Board: 2015, Ballot
Issues for the 2015 November Election, Issue 1, Ballot Language, available at
https://www.ohiosos.gov/legislation-and-ballot-issues/ballot-board/ballot-board-
2015/ (accessed Jan. 10, 2022) [https://perma.cc/ZP9U-VN86]. The apparent hope
was that the uncertainties and electoral vagaries that come with a four-year plan
would motivate political actors to reach a consensus.
{¶ 236} Section 6 is part and parcel of this approach. Article XI, Section 6
provides:

The Ohio redistricting commission shall attempt to draw a

general assembly district plan that meets all of the following
standards:
(A) No general assembly district plan shall be drawn
primarily to favor or disfavor a political party.
(B) The statewide proportion of districts whose voters, based
on statewide state and federal partisan general election results
during the last ten years, favor each political party shall correspond
closely to the statewide preferences of the voters of Ohio.
(C) General assembly districts shall be compact.
Nothing in this section permits the commission to violate the
district standards described in Section 2, 3, 4, 5, or 7 of this article.

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(Emphasis added.) Violations of these provisions are not coequal to violations of

Section 2, 3, 4, 5, or 7; Section 6 states that in the event the commission’s attempt
to draw a General Assembly-district plan conflicts with Section 6’s guideposts, the
mandatory map-drawing criteria provided in Section 2, 3, 4, 5, or 7 will control.
1. Section 6 Imposes Directory Duties on the Commission
{¶ 237} The majority focuses on the use of the word “shall” in Section 6 as
making a stand-alone violation of that section actionable. However, when a
constitutional provision uses the word “shall,” it can establish either a mandatory
or a directory requirement. See generally In re Nowak, 104 Ohio St.3d 466, 2004-
Ohio-6777, 820 N.E.2d 335, ¶ 37-38; Ex parte Falk, 42 Ohio St. 638, 639 (1885).
Neither type of provision is intended to be disregarded by public officials. See 1A
Norman Singer and Shambie Singer, Sutherland Statutes and Statutory
Construction, Section 25:3 (7th Ed.Rev.2021). Their enforceability, however,
differs.
{¶ 238} “A directory provision, by definition, involves no invalidating
consequence for its disregard,” Nowak at ¶ 37, and “ ‘an objection that [a directory
provision was] not observed will be unavailing in the courts’ ” (brackets added in
Nowak), id., quoting Falk at 639. The safeguard against a public official violating
a directory constitutional provision is his or her sense of duty and adherence to his
or her oath to uphold the Constitution. Miller v. State, 3 Ohio St. 475, 484 (1854),
overruled on other grounds by State v. Morello, 169 Ohio St. 213, 158 N.E.2d 525
(1959). There is no remedy created for a violation of a directory provision.
{¶ 239} In contrast, a violation of a mandatory provision invalidates the act
or transaction, and compliance with the provision may be enforced in the courts.
See Nowak at ¶ 37; 1A Singer and Singer at Section 25:3. Therefore, unlike a
directory provision, a remedy is provided to redress the violation of a mandatory
provision. For example, Sections 2, 3, 4, 5, and 7 of Article XI impose mandatory
duties on the commission when drawing district maps because Section 9(D)(3)

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requires this court to invalidate a district or a plan that does not sufficiently comply
with any of those provisions.
{¶ 240} By adopting Article XI, Section 6 without providing any specific
enforcement mechanism, no standard as to what constitutes an attempt, and no way
to determine from the face of the plan whether an attempt had been made, the people
of Ohio established a directory provision that members of the redistricting
commission are duty bound to comply with in accordance with their oaths to uphold
the Ohio Constitution.
{¶ 241} The majority asserts that House Speaker Cupp and Senate President
Huffman concede that under Article XI, Section 9(D)(3)(c), “a violation of Section
6(B) is actionable if there is also a violation of Section 2, 3, 4, 5, or 7.” Majority
opinion at ¶ 99. The majority concludes that this proves that Section 6(B) is
mandatory, not directory.
{¶ 242} But if Article XI, Section 6(B) is mandatory and independently
enforceable, why does Section 9(D)(3)(c) require a predicate violation of Section
2, 3, 4, 5, or 7? If, as the majority concludes, a violation of Section 6(B) is
actionable without a violation of Section 2, 3, 4, 5, or 7, how does that not render
Section 9(D)(3)(c) superfluous? And by the majority’s own analysis, then, Section
6(A) must itself be directory, because no provision in Section 9(D)(3) makes it
enforceable. Nonetheless, the majority invalidates the General Assembly-district
plan for an independent violation of Section 6(A), finding that the commission did
not attempt to draw a map that would not favor or disfavor a political party.
{¶ 243} The majority’s analysis of how Article XI, Section 9(D)(3)(c)
operates to give this court authority to invalidate a General Assembly-district plan
for an alleged violation of Section 6(B) is incorrect. Notably, Section 9(D)(3)(c)(i)
does not incorporate Section 6(B) but, rather, refers to the standard for proportional
representation “as described in division (B) of Section 6.” Also notable is that as
set forth above, it does not say, “as required by division (B) of Section 6.” Our

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judicial review requires the court to (1) look at the General Assembly-district plan
itself and determine whether there are any significant violations of Section 2, 3, 4,
5, or 7 that materially affect the ability of the plan to contain proportionately drawn
districts and, if so, to (2) decide whether the districts are proportional.
{¶ 244} Article XI, Section 6(B), however, does not require the drawing of
proportional districts; it only directs the commission to attempt to do that. If
Section 9(D)(3)(c) were referring to a violation of Section 6(B), it would point to
the commission’s failure to attempt to draw proportionate districts. But Section
9(D)(3)(c) does not mention a failure to attempt.  Instead, Section 9(D)(3)(c)
incorporates by reference the proportionality standards set forth in Section 6(B) as
a measure of the significance of a violation of a failure to comply with Section 2,
3, 4, 5, or 7. In fact, the commission could “attempt” to draw a proportionate plan
and thereby comply with Section 6(B), but this court could still invalidate the plan
under Section 9(D)(3)(c)(i) if the plan violated Section 2, 3, 4, 5, or 7 to such a
degree that it “materially affects the ability of the plan to contain districts whose
voters favor political parties in an overall proportion that corresponds closely to the
statewide political party preferences of the voters of Ohio, as described in division
(B) of Section 6 of this article.” The description in Section 6(B) fills in a blank that
appears in Section 9(D)(3)(c)(ii)–the preference of voters is to be “based on
statewide state and federal partisan general election results during the last ten
years.” In sum, Section 9(D)(3)(c) does not provide a remedy for a violation of
Section 6(B); it refers to terminology from Section 6(B) to determine whether there
has been a significant enough violation of Section 2, 3, 4, 5, or 7 under the impasse
procedure.
{¶ 245} That the standards established by Article XI, Section 6 are directory
and therefore not judicially enforceable does not make this provision superfluous.
Rather, these standards create guidelines for the commission to follow in adopting
a General Assembly-district plan. However, Section 6 makes manifest that these

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standards are subordinate to the mandatory, neutral mapmaking requirements

imposed by Sections 2, 3, 4, 5, and 7.
{¶ 246} Therefore, the structure of Article XI lends further support to the
conclusion that this court lacks the authority to declare a district plan invalid for a
stand-alone violation of Article 6. Article XI specifically distinguishes the
provisions that are mandatory (Sections 2, 3, 4, 5, and 7) from the provision that is
directory (Section 6). Article XI, Section 9(D) recognizes this distinction by
making judicially enforceable violations only of the mandatory provisions.
2. The Commission Attempted to Comply with Section 6
{¶ 247} Having brushed aside the constitutional limits on its authority, the
majority declares the district plan invalid by holding that the commission failed to
attempt to draw a plan that does not primarily favor or disfavor a political party and
that contains a statewide proportion of districts that closely corresponds to the
statewide preferences of Ohio voters. The word “attempt” means “to make an effort
to do, accomplish, solve or effect.” Webster’s Third New International Dictionary
140 (2002). The majority, however, disregards the meaning of “attempt” and says
that the attempt required by Section 6 must be successful “[i]f it is possible,”
majority opinion at ¶ 88. But an attempt denotes the beginning of an effort and
does not speak to whether the results of that effort are successful. For example, the
sentence, “She attempted to swim across the swollen river,” which suggests failure,
is different from the sentence, “She swam across the swollen river.”
{¶ 248} The majority’s analysis therefore rewrites the plain language of
Article XI, Section 6 by deleting the words “attempt to” from the provision and
adding the words “[i]f it is possible,” majority opinion at ¶ 88, as follows: “The
Ohio redistricting commission shall, attempt to if it is possible, draw a general
assembly district plan that meets all of the following standards.” However, the
authority to amend the Ohio Constitution is reserved to the people of this state
pursuant to Article XVI, Section 1. That power does not belong to this court.

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{¶ 249} Moreover, there is competing evidence to demonstrate that the

commission did attempt to draw a plan that does not primarily favor or disfavor a
political party and that contains a statewide proportion of districts that closely
corresponds to the statewide preferences of Ohio voters. The majority picks and
chooses among the evidence presented in these cases to support its conclusion that
the commission failed to make an effort to adopt a map that complies with the
standards established in Article XI, Section 6. But to reach this conclusion, the
majority ignores the countervailing evidence presented.
{¶ 250} First, the commission was successful in its attempt to comply with
Article XI, Section 6(A). The plan was not adopted by the commission with the
primary purpose of favoring or disfavoring a political party. Rather, the evidence
demonstrates that DiRossi and Springhetti drafted the plan with the primary
purpose of complying with Article XI, Sections 2, 3, 4, 5, and 7, which they viewed
as being mandatory requirements that the commission had to follow. House
Speaker Cupp testified that they were focused on the “line drawing part” and the
population requirements. And although the OOC claims that the plan violates the
Ohio Constitution’s Equal Protection Clause, none of the petitioners assert that the
plan adopted by the commission violates any of the neutral map-drawing
requirements of Section 2, 3, 4, 5, or 7.
{¶ 251} Second, the commission attempted to comply with Article XI,
Section 6(B) because it sought to compromise on a plan that could be adopted
through a bipartisan vote. The initial plan proposed by House Speaker Cupp and
Senate President Huffman was projected to result in 67 Republican-leaning House
seats and 32 Democratic-leaning House seats. The Democratic members of the
commission proposed a plan in which there would be 55 Republican-leaning House
seats and 44 Democratic-leaning House seats. They later amended their proposal
to increase the number of Republican-leaning House seats to 57 and to decrease the
number of Democratic-leaning House seats to 42. Speaker Cupp and President

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Huffman then circulated a plan that reduced the number of House seats that were
predicted to lean Republican from 67 to 62, an amount that was less than the 64
House seats the Republicans currently control. See Ohio House of Representatives,
134th General Assembly, available at https://ohiohouse.gov/members/directory
(accessed Dec. 27, 2021) [https://perma.cc/J5SZ-CEV9]. Speaker Cupp testified
that he and President Huffman were prepared to concede more seats but that the
Democratic members of the commission stopped negotiating. Similarly, Governor
DeWine, Secretary LaRose, and Auditor Faber each explained that they had sought
to mediate a compromise between the legislative members of the commission. In
the end, no compromise was reached, but these facts show that the commission
attempted to adopt a plan that contained a statewide proportion of districts that more
closely corresponds to the statewide preferences of Ohio voters.
3. Disposition of Claims Alleging Violations of Section 6
{¶ 252} The complaints filed in League of Women Voters of Ohio v. Ohio
Redistricting Comm. (Supreme Court case No. 2021-1193) and Bennett v. Ohio
Redistricting Comm. (Supreme Court case No. 2021-1198) do not allege that the
plan the commission adopted violates Article XI, Section 2, 3, 4, 5, or 7 of the Ohio
Constitution. And even if Section 6 were judicially enforceable, the petitioners in
these two cases have failed to demonstrate that the commission violated its
standards. Judgment should be entered against the petitioners in League of Women
Voters and Bennett. It should also be entered against the petitioners in Ohio
Organizing Collaborative v. Ohio Redistricting Comm. (Supreme Court case No.
2021-1210) to the extent that they assert stand-alone violations of Section 6.
D. Alleged Violations of Section 3(B)(2)
{¶ 253} The complaint in Ohio Organizing Collaborative also alleges that
the plan that the commission adopted violates Article XI, Section 3(B)(2) of the
Ohio Constitution in addition to Section 6(A) and (B). Section 3(B)(2) provides
that the plan adopted by the commission “shall comply with all applicable

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provisions of the constitutions of Ohio and the United States and of federal law.”
Article XI, Section 3(B)(2), Ohio Constitution. The OOC maintains that the
commission violated the Ohio Constitution’s guarantees of equal protection under
Article I, Section 2, assembly under Article I, Section 3, and free speech under
Article I, Section 11. I disagree.
1. Equal Protection
{¶ 254} Article I, Section 2 of the Ohio Constitution provides: “All political
power is inherent in the people. Government is instituted for their equal protection
and benefit, and they have the right to alter, reform, or abolish the same, whenever
they may deem it necessary * * *.” The OOC contends that the General Assembly-
district plan violates the Equal Protection Clause by diluting the votes of
Democratic voters, thus denying them the right to vote on equal terms to alter or
reform their government under the Ohio Constitution.
{¶ 255} However, the plan adopted by the commission does not affect the
right to vote on equal terms to alter or reform the government under the Ohio
Constitution. The right to vote is not created by Article I, Section 2. Rather, the
right to vote emanates from Article V, Section 1 of the Ohio Constitution, which
states who is “entitled to vote at all elections.” Each qualified elector of this state
enjoys the same right to vote, regardless of the district in which he or she lives. See
id.; R.C. Chapter 3503. Yet the specific provision establishing the right to vote
does not create a right to proportional representation.
{¶ 256} Further, the adopted district plan does not affect the right to alter or
reform the state government, because such a vote would take place on a statewide
basis to initiate a law, a constitutional amendment, or even a new constitution. See
Article II, Sections 1a and 1b, and Article XVI, Ohio Constitution. The adopted
district plan does not burden that right. Bootstrapping this right with equal-
protection principles does not establish a right to vote with proportional
representation. And that is the principle underlying the OOC’s argument.

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{¶ 257} The OCC maintains that the plan deprives some Democratic voters
of the chance to elect their chosen candidate to office by diluting their voting
strength. But as the United States Supreme Court has explained,

[p]artisan gerrymandering claims rest on an instinct that groups with

a certain level of political support should enjoy a commensurate
level of political power and influence. Explicitly or implicitly, a
districting map is alleged to be unconstitutional because it makes it
too difficult for one party to translate statewide support into seats in
the legislature. But such a claim is based on a “norm that does not
exist” in our electoral system—“statewide elections for
representatives along party lines.”

Rucho v. Common Cause, ___ U.S. ___, ___, 139 S.Ct. 2484, 2499, 204 L.Ed.2d
931 (2019), quoting Davis v. Bandemer, 478 U.S. 109, 159, 106 S.Ct. 2797, 92
L.Ed.2d 85 (1986) (O’Connor, J., concurring). Applying the federal Equal
Protection Clause, the United States Supreme Court has rejected the proposition
that “each party must be influential in proportion to its number of supporters.” Id.
at ___, 139 S.Ct. at 2501. “It hardly follows from the principle that each person
must have an equal say in the election of representatives that a person is entitled to
have his political party achieve representation in some way commensurate to its
share of statewide support.” Id.
{¶ 258} Of course, the Ohio Constitution is a document of independent
force and can provide greater protection than its federal counterpart. Arnold v.
Cleveland, 67 Ohio St.3d 35, 42, 616 N.E.2d 163 (1993). But the people of Ohio
adopted the Equal Protection Clause of Article I, Section 2 as part of the 1851
Constitution. In that same document, the people took reapportionment out of the
hands of the General Assembly and provided for the governor, auditor, and

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secretary of state to determine the number of representatives and senators that each
county or district would receive. See State ex rel. Herbert v. Bricker, 139 Ohio St.
499, 508, 41 N.E.2d 377 (1942); State ex rel. King v. Rhodes, 11 Ohio St.2d 95, 99,
228 N.E.2d 653 (1967). We have explained that “[p]rior to the Constitution of
1851, the apportionments of legislative districts had been made by the General
Assembly with the result that oftentimes political advantage was sought to be
gained by the party in power.” Herbert at 508. Therefore, we continued, “Article
XI was incorporated in the Constitution for the purpose of correcting the evils of
former days by placing the power of apportionment in the hands of a board
composed of the Governor, the Auditor of State and the Secretary of State and
making the provisions self-acting.” Id.
{¶ 259} That is, “[t]he objective sought by the constitutional provisions was
the prevention of gerrymandering,” id. at 509, by “plac[ing] the function of
apportionment in impartial hands and at the same time mark[ing] the way so that in
the main at least the provisions of the Constitution would work automatically and
the apportioning process [would] ordinarily be a mere matter of calculation,” id.
{¶ 260} Although the framers of the 1851 Constitution included equal-
protection language, they nonetheless established the remedy for gerrymandering
for partisan advantage not in equal-protection principles but in a more specific
provision addressing reapportionment. As Justice Rufus Ranney, a delegate at the
1851 Constitutional Convention, wrote for this court in 1853, “I am much mistaken
if the system adopted by the convention [i.e., former Article XI] is not found
entirely adequate to accomplish all the substantial purposes proposed, and one of
the most valuable features of the constitution.” State ex rel. Evans v. Dudley, 1
Ohio St. 437, 443 (1853); see King at 99. He noted that “[t]he state had been
subjected to a most humiliating experience, while the [apportionment] power was
left with the General Assembly; and the scenes of anarchy and confusion, which
had marked its exercise there, undoubtedly determined the people to deprive that

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body of it absolutely, so far as the election of their own members was concerned,
for the future.” Evans at 443. Rather than rely on Article I, Section 2 to limit
political gerrymandering, the people adopted that protection in Article XI.
{¶ 261} In ratifying the current version of Article XI, the voters of Ohio did
not change that calculus but rather provided additional language specifically aimed
at gerrymandering. Article XI imposes both mandatory and directory requirements
for the redistricting commission relating to the traditional rules of apportionment.
For example, it requires districts of approximately equal populations that are
contiguous and that minimize the division of political subdivisions. In addition,
Article XI Section 6 provides directory requirements for the commission to attempt
to draw districts that do not favor or disfavor a political party, Section 6(A), and to
attempt to make the statewide propositions of districts closely correspond to the
statewide preferences of Ohio voters, Section 6(B). Further, Section 6(C) directs
the redistricting commission to attempt to draw districts that are compact. As the
Supreme Court of Pennsylvania has explained, “the use of compactness, contiguity,
and the maintenance of the integrity of the boundaries of political subdivisions
maintains the strength of an individual’s vote in electing a * * * representative.”
League of Women Voters v. Commonwealth, 645 Pa. 1, 120-121, 178 A.3d 737
(2018).
{¶ 262} Article XI of the Ohio Constitution specifically targets
gerrymandering in drawing a General Assembly-district plan, but it does not
expressly prohibit the adoption of a plan that provides for disproportional
representation. Because a special constitutional provision controls a general one,
State ex rel. Maxcy v. Saferin, 155 Ohio St.3d 496, 2018-Ohio-4035, 122 N.E.3d
1165, ¶ 10, we cannot construe Ohio’s Equal Protection Clause as providing any
greater remedy for gerrymandering than that provided specifically in Article XI.
Put differently, we cannot hold that the specific remedial procedure provided by the
Ohio Constitution itself violates another provision of the Ohio Constitution. For

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these reasons, resort to equal-protection principles cannot be had when a General

Assembly-district plan conforms to the mandatory requirements of Article XI.
{¶ 263} But if Article I, Section II really provided additional protections
against gerrymandering, then the remedy proposed by the OOC would itself violate
principles of equal protection.
{¶ 264} The partisan preferences of voters are not evenly distributed across
the state of Ohio. Dr. Michael Barber’s expert report describes the political
geography of Ohio and explains that Democratic voters tend to live in more densely
populated areas (i.e., in cities) while Republican voters tend to live in less populated
(i.e., rural and suburban) areas. Further, Democrats tend to live in more
homogeneous cities with a stronger partisan preference than Republicans, who tend
to live in more heterogenous areas of the suburban and rural areas. As Dr. Barber
explains, the Ohio Constitution requires “spatially contiguous, geographically
compact electoral districts”; this occurs because of the mandatory requirement to
minimize the division of political units and the directory requirement for compact
districts. Compliance with these requirements leads to Democratic voters tending
to be clustered in districts that result in so-called “wasted” votes in which
Democratic candidates win by overwhelming numbers while Republicans tend to
be in more competitive districts in which Republican candidates win by smaller
margins.
{¶ 265} Dr. Barber’s review of Ohio’s political geography also reveals that
65 counties are uniformly Republican and that based on their population, they
would be expected to control approximately one-third of the House seats.
Seventeen counties are what he calls “purple cluster” counties—counties that are
mostly Republican except that they have a small-to-medium-sized municipality that
is majority Democratic. These represent 26 House districts, but only 5 could be
drawn in compliance with the requirement to avoid splitting political units. That
results in the purple-cluster counties tending to lean Republican. Lastly, Dr. Barber

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identifies 6 “urban blue” counties, which split approximately 60 percent

Democratic and 40 percent Republican and account for approximately 41 House
districts.
{¶ 266} Based on this political geography, Dr. Barber explains, the various
requirements of the Ohio Constitution for territorial continuity, district
compactness, political-unit integrity, and proportionality come into tension. He
opined that in order for the statewide proportion of House districts to closely
correspond to the preferences of Ohio voters (i.e., 54 Republican seats and 45
Democratic seats), the commission would have to draw districts in the purple-
cluster counties and the urban-blue counties in a way intended to give a political
advantage to Democratic voters in those counties. That is, a plan that overcame the
political geography of Ohio would provide Democrats greater representation in
counties than the preferences of voters there would merit.
{¶ 267} This is shown in the report of the OOC’s expert, Dr. Jonathan
Rodden, who proposed a plan that more closely corresponded with the partisan
divide of the state by taking urban areas that tend to vote strongly for Democratic
candidates and combining them with more suburban and rural areas that tend to
vote Republican. For example, Dr. Rodden intentionally drew 11 districts in
Franklin County in such a way that all 11 districts would skew in favor of the
Democratic Party. So, while the partisan divide of Franklin County is
approximately 63 percent Democratic and 37 percent Republican, Dr. Rodden’s
plan would give 100 percent of the districts to the Democratic Party. The plan
proposed by Senator Vernon Sykes and House Minority Leader Emilia Sykes
eliminates Republican representation not only in Franklin County but also in
Pickaway County, a rural county that gave President Donald Trump over 70 percent
of the vote in 2020. Similarly, Hamilton County leans 55 percent Democratic and
45 percent Republican. Dr. Rodden’s plan, however, would provide 6 out of 7
House districts (or approximately 85 percent) to Democrats by cracking

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Republican-leaning areas of the county and packing them with the more
Democratic urban areas.
{¶ 268} The alternative plans that the OOC presents, then, would dilute the
votes of Republican voters in the areas surrounding cities. To the extent that the
OOC seeks a remedy to the dilution of Democratic voters, the remedy would do so
at the expense of other voters. Therefore, even if voter dilution were actionable
under Article I, Section 2 of the Ohio Constitution, we could not direct the
commission to remedy one constitutional violation by committing another. See
Wilson v. Kasich, 134 Ohio St.3d 221, 2012-Ohio-5367, 981 N.E.2d 814, ¶ 38.
2. Freedom of Speech, Assembly, and Association
{¶ 269} Lastly, the OOC asserts that the commission’s plan violates their
rights to freedom of speech, assembly, and association. However, the plan does
nothing to burden any of these rights. It does not limit speech, prohibit assembly,
or deny Ohio voters the ability to associate with others. See Rucho, ___ U.S. at
___, 139 S.Ct. at 2504, 204 L.Ed.2d 931 (“there are no restrictions on speech,
association, or any other First Amendment activities in the districting plans at issue.
The plaintiffs are free to engage in those activities no matter what the effect of a
plan may be on their district”).
{¶ 270} For these reasons, the OOC has failed to demonstrate a violation of
Article XI, Section 3 of the Ohio Constitution, and it is not entitled to relief.
E. The Majority’s Final Note
{¶ 271} In concluding its opinion, the majority strikes a “final note.”
Majority opinion at ¶ 134. The majority writes:

A final note. Our analysis and conclusion in these cases

would be the same regardless of which political party makes up the
majority of the commission or drives the map-drawing process. And
any disagreement between the members of this court about the legal

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interpretation of words in the Ohio Constitution does not undermine

the integrity of the court or Ohioans’ confidence in it, as the second
dissenting opinion fears. It is a hallmark of an independent
judiciary, made up here of seven jurists, that principled legal
disagreements may arise. When disagreements do arise and are
addressed intelligently and truthfully by the justices, confidence in
the judicial branch of our government is strengthened. But when
they are addressed with dire predictions and what appears to be
unreasonable characterizations, we cannot help but wonder whether
such aspersions will shake the public’s confidence in our court.

Id. at ¶ 134.
{¶ 272} But the final note that the majority strikes is emblematic of the
disharmony of our times.
{¶ 273} R.C. 3.23 requires judges to pledge an oath “to support the
constitution of the United States and the constitution of this state, to administer
justice without respect to persons, and faithfully and impartially to discharge and
perform all the duties incumbent on the person as such judge, according to the best
of the person's ability and understanding.” Every justice of this court has pledged
that oath, and I would never question a colleague’s intent to abide by it in every
case that he or she addresses, pursuant to his or her understanding of our
Constitutions and laws.
{¶ 274} But the majority opinion signals that only it is faithfully and
impartially discharging its duty in these cases because its analysis and conclusion
would be the same regardless of “which political party makes up the majority of
the commission or drives the map-drawing process,” majority opinion at ¶ 134.
This implies that the justices who are not joining the majority opinion are not
faithfully and impartially discharging their duty in these cases.

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{¶ 275} And the majority opinion’s insinuation that the dissenting opinions
are driven by political affiliations and political outcomes is difficult to harmonize
with this court’s recent decision in Cleveland Metro. Bar Assn. v. Morton, ___ Ohio
St.3d ____, 2021-Ohio-4095, ___ N.E.3d ___. The same justices who are today
implying that other justices of this court are guided by something other than fidelity
to a sworn oath of office harshly disciplined an attorney who had “filed a pleading
in which he accused this court of adjudicating based on political motives,” id. at
¶ 45 (O’Connor, C.J., concurring). The four members of the majority here joined
a concurring opinion in Morton, which stated that an attorney should be disciplined
in order to “preserv[e] the integrity of the court—i.e., the judicial system as a
whole—by maintaining public confidence in the court’s impartiality and the rule of
law.” (Emphasis sic.) Id. at ¶ 41 (O’Connor, C.J., concurring). That concurring
opinion stated that “accusing this court of furthering its own political agenda
directly undermines this confidence.” Id. at ¶ 42 (O’Connor, C.J., concurring). It
also stated that “[p]reserving the integrity of the court depends on the public’s
confidence and respect for the judicial system and the long-standing disciplinary
rules regulating attorneys’ conduct in that system.” Id. at ¶ 46 (O’Connor, C.J.,
concurring).
{¶ 276} When the attorney in Morton accused this court of having political
motivations, the members of today’s majority concluded that the attorney had
committed an ethical violation by undermining confidence in this court’s
impartiality and the rule of law. But when today’s majority opinion, by way of
insinuation, suggests that the dissenters’ views are politically motivated, it simply
calls it a “final note,” majority opinion at ¶ 134. So, these cases beg the question:
Where is the ethical line?
III. CONCLUSION
{¶ 277} Invariably, redistricting is a process of line drawing. And in
drawing those lines, some Democratic voters must be placed in Republican-leaning

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districts and some Republican voters must be placed in Democratic-leaning

districts. Any plan will dilute or enhance the strength of some voters. The Ohio
Constitution requires the redistricting commission to follow politically neutral
map-drawing practices and directs the commission to attempt to adopt a plan that
gives proportional representation, but it does not eliminate the dilution of some
electors’ voting strength. The remedy provided by the Constitution may not please
all Ohio voters, but this court does not have license to demand by judicial fiat the
adoption of a new General Assembly-district plan.
{¶ 278} In the end, none of the complaints filed in these three cases
demonstrates petitioners’ entitlement to the relief sought. Because the majority
invalidates the General Assembly-district plan even though that power has been
denied to this court by the Ohio Constitution, I dissent.
DEWINE, J., concurs in the foregoing opinion.
_________________
FISCHER, J., dissenting.
{¶ 279} I must respectfully dissent. I agree with the conclusion stated in
the first dissenting opinion that not one of the complaints filed in these three cases
demonstrates that any petitioner is entitled to the relief sought. See dissenting
opinion of Kennedy, J., at ¶ 278. I am strongly convinced, however, that it is not
even necessary for us to engage in an analysis of the merits of these cases. The text
of the Ohio Constitution is clear, and given the allegations in the complaints, this
court lacks the authority to act as requested by the petitioners bringing these cases.
I. The plain language of Article XI, Section 8(C)(1)(a) precludes this court
from reviewing the plan in these cases
{¶ 280} Article XI, Section 8 of the Ohio Constitution sets forth the
procedure that the Ohio Redistricting Commission must follow when it reaches an
impasse. This section also sets forth when this court may review a final General
Assembly–district plan adopted pursuant to the impasse procedures. And, please

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note, as specifically set forth in all three complaints and conceded during oral
argument, the impasse procedures of Section 8 are controlling in these cases. This
fact is not disputed in the majority opinion.
{¶ 281} Under Article XI, Section 8(B), a final General Assembly–district
plan adopted after an impasse with the votes of at least two commission members
representing each of the two largest political parties (a “ten-year plan”) “shall
remain effective until the next year ending in the numeral one, except as provided
in Section 9 of this article.” (Emphasis added.)
{¶ 282} If, however, at least two commission members representing each of
the two largest political parties do not vote for a final General Assembly–district
plan after an impasse, Article XI, Section 8(C)(1)(a) provides that the plan (a “four-
year plan”) “shall remain effective until two general elections for the house of
representatives have occurred under the plan.”
{¶ 283} At the conclusion of that four-year term, if the commission, in
adopting a new final General Assembly–district plan, is once again unable to obtain
the votes of at least two commission members representing each of the two largest
political parties, Article XI, Section 8(C)(1)(b) provides that the plan (a “six-year
plan”) “shall remain effective until a year ending in the numeral one, except as
provided in Section 9 of this article.” (Emphasis added.)
{¶ 284} Article XI, Section 9 sets forth this court’s authority to determine
the constitutionality of a General Assembly–district plan adopted by the
redistricting commission. It is significant that while both the ten-year plan adopted
pursuant to Section 8(B) and the six-year plan adopted pursuant to Section
8(C)(1)(b) remain in effect for the relevant time period “except as provided in
Section 9 of this article” (emphasis added), Section 8(C)(1)(a) contains no proviso
that the effectiveness of a four-year plan is subject to the provisions of Section 9.
Section 8(C)(1)(a) instead provides that the plan “shall remain effective” for four
years. Period. No exception for Section 9 is listed.

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 January Term, 2022

{¶ 285} Because the phrase “except as provided in Section 9 of this article”

is not included in Article XI, Section 8(C)(1)(a), this court cannot review a four-
year plan under Section 9. The absence of the phrase in Section 8(C)(1)(a) must
mean something. In other words, this is a situation in which the interpretive canon
expressio unius est exclusio alterius must apply. “ ‘[T]he canon expressio unius est
exclusio alterius does not apply to every statutory listing or grouping; it has force
only when the items expressed are members of an “associated group or series,”
justifying the inference that items not mentioned were excluded by deliberate
choice, not inadvertence.’ ” Summerville v. Forest Park, 128 Ohio St.3d 221, 2010-
Ohio-6280, 943 N.E.2d 522, ¶ 35, quoting Barnhart v. Peabody Coal Co., 537 U.S.
149, 168, 123 S.Ct. 748, 154 L.Ed.2d 653 (2003), citing United States v. Vonn, 535
U.S. 55, 65, 122 S.Ct. 1043, 152 L.Ed.2d 90 (2002). As the Supreme Court of the
United States has explained in regard to the canon:

Just as statutory language suggesting exclusiveness is

missing, so is that essential extrastatutory ingredient of an
expression-exclusion demonstration, the series of terms from which
an omission bespeaks a negative implication. The canon depends
on identifying a series of two or more terms or things that should be
understood to go hand in hand, which is abridged in circumstances
supporting a sensible inference that the term left out must have been
meant to be excluded.

Chevron U.S.A., Inc. v. Echazabal, 536 U.S. 73, 81, 122 S.Ct. 2045, 153 L.Ed.2d
82 (2002). Because Article XI, Section 8 has two provisions that specifically
include the phrase “except as provided in Section 9 of this article” and a third
provision that does not include the phrase, the exception in that phrase is not
applicable when the third provision applies.

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{¶ 286} We have two constitutional provisions in Article XI—Section 8(B)

and 8(C)(1)(b)—that expressly create an exception under Article XI, Section 9 to
the mandatory language requiring that a ten-year plan and a six-year plan reached
after an impasse shall remain effective for the specified period. In between those
two provisions, we have Section 8(C)(1)(a), under which a four-year plan is
adopted and which obviously does not include the phrase “except as provided in
Section 9 of this article.” The omission of the phrase “support[s] a sensible
inference that the term left out must have been meant to be excluded.” Chevron
U.S.A., Inc., at 81. It logically follows that we must take the language of Section
8(C)(1)(a)—which was added to our Constitution by an overwhelming majority of
Ohioans, see Ohio Secretary of State, Statewide Issue History,
https://www.ohiosos.gov/elections/election-results-and-data/historical-election-
comparisons/statewide-issue-history/ (accessed Jan. 2, 2022)
[https://perma.cc/CK6W-2KUC]—on its own terms: a four-year plan “shall remain
effective until two general elections for the house of representatives have occurred
under the plan.” No exceptions under Section 9 are stated. The majority opinion
is unreasonably, unabashedly, and unlawfully altering the Ohio Constitution.
{¶ 287} It is telling that in analyzing the provisions of Article XI, Section
6, the majority opinion concludes that the phrase “shall attempt,” as it is used in
that section, connotes a mandatory obligation that requires the commission to
attempt to meet the standards set forth in Section 6. Majority opinion at ¶ 86. If
we are to read the “shall” in Article XI, Section 6 as mandatory, then we should
also read the “shall” in Article XI, Section 8(C)(1)(a) as mandatory and requiring a
four-year plan to remain effective for four years, and without any Section 9
exceptions.
{¶ 288} Ohio Senate President Matt Huffman and Ohio House Speaker
Robert R. Cupp argue in their supplemental brief that this court “could reasonably
construe Section 8(C)(1)(a) as divesting this Court of any authority to review or

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enjoin four-year plans.” The other parties in these cases and the majority opinion,
however, fail to offer any reasonable explanation for what the absence of the phrase
“except as provided in Section 9 of this article” in Article XI, Section 8(C)(1)(a)
means. Instead, they illogically and baselessly ignore the phrase’s absence in this
provision and look to Article XI, Section 9’s grant of general jurisdiction to this
court as permitting this court to consider challenges to a four-year plan. This
analysis is flawed because the specific and clear text of Article XI, Section 8(C)
controls over the text of the much more general Article XI, Section 9, and,
moreover, the text shows that Section 9 does not apply to plans adopted pursuant
to Section 8(C)(1)(a).
{¶ 289} The Ohio Constitution, in other provisions, exposes the unreasoned
and baseless flaw in ignoring the language of Section (8)(C)(1)(a). For example,
Article I of the Ohio Constitution includes several exceptions in Sections 5, 9, 10,
and 18. This court does not ignore these exceptions in cases involving those
provisions, and it cannot, because it is the language and words used in the text of
our state Constitution.
{¶ 290} Similarly, Article XIX is replete with the phrase “except as
provided in Section 3 of this article.” In Section 1 of Article XIX, this “except”
phrase is used at least seven times. Should this court ignore similar language found
here and in many places throughout the Ohio Constitution?
{¶ 291} And there is an important and revealing lack of parallelism in a
provision found in Article XIX compared to a similar provision found in Article XI
that unequivocally and absolutely supports the conclusion that the Section 9
language was not inadvertently omitted in Article XI, Section 8(C)(1)(a). Article
XIX, Section 1(C)(3)(e) states: “[T]he plan shall remain effective until two general
elections for the United States house of representatives have occurred under the
plan, except as provided in Section 3 of this article” (emphasis added), while Article
XI, Section 8(C)(1)(a) states: “[T]he plan shall take effect upon filing with the

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secretary of state and shall remain effective until two general elections for the house
of representatives have occurred under the plan.” Note that no emphasis is added
to the second quotation because no “exception” language is included at the end of
the provision.
{¶ 292} The provision in Article XIX expressly states an exception: “except
as provided in Section 3 of this article.” The all but verbatim provision found in
Article XI has no such provision for an exception at its end.
{¶ 293} Because the majority opinion ignores the difference in the
language, it then also makes phrases such as “except as provided in * * *” found
elsewhere in the Ohio Constitution superfluous. Under long-standing case law, this
court is not permitted to make constitutional language superfluous, because “[i]t is
a basic rule of constitutional construction that ‘the whole section should be
construed together, and effect given to every part and sentence.’ ” (Emphasis
added.) State v. Wyant, 68 Ohio St.3d 162, 168, 624 N.E.2d 722 (1994) (Wright,
J., dissenting), quoting Froelich v. Cleveland, 99 Ohio St. 376, 124 N.E. 212
(1919), paragraph one of the syllabus.
{¶ 294} Finally, the legislative history of the joint resolution that proposed
the current version of Article XI expressly shows that the phrase “except as
provided in Section 9 of this article” was specifically added to what became Article
XI, Section 8(C)(1)(b). Compare 2014 Sub.H.J.R. No. 12, 130th General
Assembly (as passed by the House, Dec. 4, 2014), available at
archives.legislature.state.oh.us/res.cfm?ID=130_HJR_12_AH (accessed Jan. 2,
2022) [https://perma.cc/VP3T-XVXU] (containing “except as provided” language
only in reference to a ten-year plan) with 2014 Am.Sub.H.J.R. No. 12, 130th
General Assembly (as passed by the Senate, Dec. 11, 2014), available at
http://archives.legislature.state.oh.us/res.cfm?ID=130_HJR_12_AS (accessed Jan.
2, 2022) [https://perma.cc/M6CN-G6GR] (including “except as provided”
language in reference to a six-year plan). Hence, the General Assembly gave some

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thought to this issue in drafting the current language and expressly declined to add
the same “except as provided in Section 9” language to Section 8(C)(1)(a) that it
added to Sections 8(B) and 8(C)(1)(b). See Wachendorf v. Shaver, 149 Ohio St.
231, 236-237, 78 N.E.2d 370 (1948) (“the Legislature must be assumed or
presumed to know the meaning of words, to have used the words of a statute
advisedly and to have expressed legislative intent by the use of the words found in
the statute”).
A. The clear text of Article XI, Section 8(C) prevents review of four-year plans
under Article XI, Section 9
{¶ 295} Under the text of the Constitution, and as acknowledged in the
complaints, this is an Article XI, Section 8 case. The primary provisions that the
parties in these cases rely on to support their arguments that the court has
jurisdiction in these cases are the provisions granting qualified authority to this
court in Sections 9(A) and 9(B) and the reference in Section 9(D)(3)(c) to reviewing
plans adopted under Section 8(C).
{¶ 296} These arguments are unavailing because Article XI, Section 8
specifies when Section 9 applies to an impasse and when it does not apply. As
noted above, Sections 8(B) and 8(C)(1)(b) expressly and clearly state when Section
9 allows this court to review a final General Assembly–district plan, i.e., only in
relation to ten-year and six-year plans. Section 8(C)(1)(a), however, creates no
exception allowing this court to exercise any authority set forth in Section 9 when
the plan is a four-year plan.
{¶ 297} It is true that Article XI, Section 9(A) grants this court “exclusive,
original jurisdiction in all cases arising under this article.” Although this provision
grants exclusive, original jurisdiction, it does not empower this court to exercise
that jurisdiction in any manner it sees fit. Instead, our review is constrained by
other provisions found in Article XI. Chief among those provisions, for purposes

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of these three cases, is Section 8(C)(1)(a), which, by its plain text, does not contain
the phrase “except as provided in Section 9 of this article.”
{¶ 298} Indeed, by omitting the phrase “except as provided in Section 9 of
this article,” Article XI, Section 8(C)(1)(a) expressly takes four-year plans outside
the purview of Section 9. This court cannot rewrite Section 8(C)(1)(a) to create an
exception to the effectiveness of four-year plans. “ ‘ “Generally speaking, in
construing the Constitution, we apply the same rules of construction that we apply
in construing statutes.” ’ ” Wilson v. Kasich, 134 Ohio St.3d 221, 2012-Ohio-5367,
981 N.E.2d 814, ¶ 13, quoting Smith v. Leis, 106 Ohio St.3d 309, 2005-Ohio-5125,
835 N.E.2d 5, ¶ 57, quoting State v. Jackson, 102 Ohio St.3d 380, 2004-Ohio-3206,
811 N.E.2d 68, ¶ 14. Perhaps the most fundamental of these rules of construction
is that we must not add or delete words from the constitutional or statutory text.
See State ex rel. Lorain v. Stewart, 119 Ohio St.3d 222, 2008-Ohio-4062, 893
N.E.2d 184, ¶ 36.
{¶ 299} More specifically, when a provision contains no such exception, we
cannot add one to its express language. State ex rel. Stoll v. Logan Cty. Bd. of
Elections, 117 Ohio St.3d 76, 2008-Ohio-333, 881 N.E.2d 1214, ¶ 39. The majority
opinion’s exercise of jurisdiction under Article XI, Section 9, despite Section
8(C)(1)(a)’s mandatory language providing that a four-year plan shall remain
effective until two general elections for the House of Representatives have occurred
under the plan, is a quintessential example of improperly “amending” constitutional
language from the bench. Nonetheless, when amending the Constitution by
adopting the current Article XI, Ohio voters declined to subject four-year plans to
the provisions of Section 9. It is this court’s duty to honor the language of Section
8(C)(1)(a) and not to ignore the language that appears in that provision of the
Constitution merely because it desires to reach a certain argument.
{¶ 300} Nor does Article XI, Section 9(B) override Section 8(C)(1)(a).
Section 9(B) sets forth the procedure to be used once this court finds invalid “any

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general assembly district plan made by the Ohio redistricting commission.” For
this court to find a plan invalid, it must do so within the authority granted to it. As
explained above, Section 8(C)(1)(a) contains no provision making a four-year plan
subject to Section 9. It logically follows that Section 9(B) cannot apply to allow
invalidation of four-year plans. Indeed, rather than grant this court authority to find
four-year plans invalid, Section 9(B) merely outlines the procedures to be followed
once this court finds a plan invalid, i.e., when this court is properly exercising its
authority.
{¶ 301} For similar reasons, Article XI, Section 9(D)(3)(c) does not grant
this court authority to review four-year plans. That provision sets forth conditions
that the court must find before ordering the commission to adopt a new plan when
“considering a plan adopted under division (C) of Section 8 of” Article XI.
Significantly, Section 9(D)(3)(c) does not say when this court may review a plan
adopted under Section 8(C). Instead, it merely outlines on what basis this court can
find a plan invalid. As explained above, to determine when this court may review
a plan adopted under Section 8(C), we must turn to the text of that provision. Again,
Section 8(C)(1)(b) expressly provides that six-year plans are subject to Section 9
(including Section 9(D)(3)(c)); however, Section 8(C)(1)(a) contains no provision
making four-year plans subject to Section 9.
B. Speculation regarding the intention of Ohio voters in approving the
amendments to the Constitution cannot override the actual text of Article XI of the
Constitution as passed by the citizens of Ohio
{¶ 302} In arguing that the text of Article XI, Section 8(C) cannot preclude
our review of four-year plans, many of the petitioners in these cases argue that a
conclusion that four-year plans are not subject to review is contrary to the intention
of Ohio voters and would create an absurd result allowing some district plans to be
reviewed while others cannot. This argument can also be found in the majority
opinion. See majority opinion at ¶ 74.

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{¶ 303} “[O]ur primary concern in construing Article XI is to determine the

intent of the electorate in adopting the article, and to discern that intent, we must
examine its text.” (Emphasis added.) Wilson, 134 Ohio St.3d 221, 2012-Ohio-
5367, 981 N.E.2d 814, at ¶ 13, addressing former Article XI, Ohio Constitution
(effective Nov. 7, 1967, to Jan. 1, 2021). We look to the intent of the framers of
the Constitution only if “the meaning of a provision cannot be ascertained by its
plain language.” Jackson, 102 Ohio St.3d 380, 2004-Ohio-3206, 811 N.E.2d 68, at
¶ 14.
{¶ 304} In these cases, intent can easily be ascertained by the plain text of
the relevant constitutional provision. As explained above, the meaning and
significance of Article XI, Section 8(C)(1)(a) is clear: the provision could contain
an exception making four-year plans subject to Section 9, but the provision contains
no such exception. And for this court to create such an exception would be a
violation of this court’s duty as interpreters—not drafters—of the Ohio
Constitution. Thus, while one may argue, based on mere speculation, that Ohio
voters wanted this court to review four-year plans, the clear text of Section
8(C)(1)(a) prevents us from reaching that conclusion.
{¶ 305} Given this clear and express constitutional language, it is not for
this court to call the language of Article XI absurd. Article XI makes six-year plans
and ten-year plans adopted pursuant to Section 8 subject to the provisions of Section
9. Four-year plans adopted pursuant to Section 8(C)(1)(a), as well as plans adopted
pursuant to Article XI, Section 1(C) without resort to the impasse procedures, are
exempted from judicial review, because each of those sections omits the phrase
“except as provided in Section 9 of this article.”
{¶ 306} But it is not for this court to question the wisdom of either the
framers of the current Article XI or the voters who approved it. Even if that were
our role, there are viable rationales for drafting Article XI without including the
Section 9 proviso. Prior to the adoption of the current Article XI, this court

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concluded that its role in adjudicating challenges to apportionment was limited.

Wilson, 134 Ohio St.3d 221, 2012-Ohio-5367, 981 N.E.2d 814, at ¶ 48. The current
Article XI expands this court’s role in adjudicating those challenges. That purpose
has been achieved, because six-year plans and ten-year plans adopted pursuant to
Section 8 are subject to the review provisions set forth in Section 9.
{¶ 307} In not making four-year plans adopted pursuant to Article XI,
Section 8 and ten-year plans adopted pursuant to Section I subject to the review
provisions set forth in Section 9, the framers and voters may have been expressing
the intention that this court should not intervene in regard to ten-year plans reached
by bipartisan consensus or in regard to four-year plans that will inevitably be
replaced (perhaps by a significantly different commission, if Ohio voters are
unhappy with the four-year plan and vote the governor, secretary of state, and
auditor out of office and if the legislative members of the commission are voted out
of office or otherwise replaced). Moreover, Section 8(D) describes the process by
which a four-year plan will be replaced: by reconstituting and reconvening the
commission after the four-year plan ceases to be effective and creating a new six-
year plan (which is subject to Section 9 under Article XI, Section 8(C)(1)(b)).
{¶ 308} By not including the phrase “except as provided in Section 9 of this
article” in Article XI, Section 8(C)(1)(a), the citizens of Ohio prohibited both major
political parties from asking this court to enter into purely partisan fights. The text
of Section 8 indicates that Ohioans do not want this court to enter into the purely
political processes of gerrymandering or redistricting unless absolutely necessary.
And the existence of this shorter, four-year plan indicates that Ohioans did not see
the involvement of this court as absolutely necessary; however, the citizens of Ohio
have made sure that this court may intervene to determine whether all constitutional
requirements are met when there is a longer six-year or ten-year plan adopted
pursuant to the impasse procedures.

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{¶ 309} Consistently with keeping this court out of the process, in regard to
four-year plans, Article XI, Section 8 creates a “carrot” and “stick” approach to the
impasse procedure. To encourage compromise and negotiation, the members of the
commission are given a carrot, or benefit, of having an agreed-upon plan that lasts
for ten years (subject to this court’s potential review) under Section 8(B).
{¶ 310} But the parties are also presented with a corresponding stick, or
cost, if they do not negotiate. If no bipartisan consensus is reached, a majority party
faces the cost of having its approved plan last for only four years, under Section
8(C)(1)(a). Further, a majority party, in light of the interceding two general
elections, could lose control of the commission before the time comes to create the
six-year plan.
{¶ 311} Under that same scenario, a minority party also faces a cost for not
reaching a bipartisan consensus, namely, it will have to live with a plan that it did
not agree to for four years. By ignoring the absence of the phrase “except as
provided in Section 9 of this article,” the analysis of the majority opinion effectively
eliminates that stick and thus significantly lessens the cost to a minority party for
failing to reach a consensus. If members of a minority party do not like the way
the process is unfolding, they can simply stop participating in the process and
challenge the eventual four-year plan in court. By making four-year plans subject
to Section 9, when the text of the Constitution does not, the majority opinion
significantly undermines the structure of Article XI and its system of costs and
benefits.
{¶ 312} Ultimately, we cannot know what the voters’ individual or
collective intent and aims were beyond the specific wording that they approved. If
Ohio voters had, and have, a different intent, they may express that intent by
amending Article XI. Indeed, we have recent precedent for the voters “amending
an amendment.” After Article XV, Section 6 of the Ohio Constitution was amended
in November 2009 to allow casino gaming at four specified sites in Ohio, that

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section was quickly amended in May 2010 to change the Columbus site to another
site in Franklin County. Thus, the procedures are in place for Ohio voters, not this
court, to amend the Constitution in the event that a recently adopted amendment
does not have the precise impact that the voters had desired in approving the
original amendment.
{¶ 313} Indeed, the second concurring opinion indicates that the majority
opinion may be based on policy motivations: the opinion suggests that Ohio’s first
experience with redistricting under the current version of Article XI has been
contrary to the voters’ intentions. See concurring opinion of Brunner, J., at ¶ 179.
This suggestion indicates that rather than follow the text of the Constitution, the
approach of the majority opinion is to honor the speculated intentions of Ohio’s
voters. The second concurring opinion goes so far as to state that based on this first
experience with the Ohio Redistricting Commission, a new constitutional
amendment is needed to establish an independent redistricting commission, id. at
¶ 180, in place of the current Ohio Redistricting Commission, which more than 70
percent of those who voted on the issue in 2015 approved, see Ohio Secretary of
State, Statewide Issue History, https://www.ohiosos.gov/elections/election-results-
and-data/historical-election-comparisons/statewide-issue-history/ (accessed Jan. 2,
2022) [https://perma.cc/CK6W-2KUC]. The first concurring opinion also suggests
that Ohioans may consider pursuing a constitutional amendment to create an
independent redistricting commission. Concurring opinion of O’Connor, C.J., at
¶ 147. It should be noted that in 2012, Ohioans overwhelmingly rejected a previous
proposal to amend the Constitution, with more than 63 percent of those who voted
on the issue declining to create a state-funded so-called “independent commission”
to draw legislative and congressional districts. See Ohio Secretary of State,
Statewide Issue History, https://www.ohiosos.gov/elections/election-results-and-
data/historical-election-comparisons/statewide-issue-history/ (accessed Jan. 2,
2022) [https://perma.cc/CK6W-2KUC]. Ultimately, the decision whether to adopt

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such a measure rests with Ohioans. For purposes of our analysis in these cases, we
must apply Article XI as it exists now.
{¶ 314} For these reasons, this court should not, and cannot as a matter of
law, elevate any speculative intention of voters in approving a constitutional
provision above the clear language that those same voters approved. I accordingly
conclude that we must honor and follow Article XI, Section 8(C)(1)(a) as written.
In doing so, we should conclude that Section 8(C)(1)(a) precludes this court from
reviewing a four-year plan under Section 9.
II. Even if this court had the authority to review the district plan
in these cases, it would still be unable to review it for
a violation of Article XI, Section 6
{¶ 315} Even if we assume for the sake of argument that this court had the
authority to review a four-year plan pursuant to Article XI, Section 9, the text of
that same section would preclude us from conducting a substantive review of the
four-year plan in these cases. In each of these three cases, the petitioners
challenging the four-year plan direct us to Article XI, Section 9(D)(3)(c), which
they assert allows this court to review a four-year plan for an alleged violation of
Article XI, Section 6. Again, while I conclude that Article XI, Section 9(D)(3)(c)
does not give this court the authority to review a four-year plan, if we were to
review the four-year plan in these cases pursuant to Section 9(D)(3)(c), our review
would be bound by the terms of that provision. In other words, petitioners may not
use Article XI, Section 9(D)(3)(c) as both a sword and a shield. If they wish to
invoke that provision in claiming that this court has the authority to review four-
year plans, they must abide by all the terms of that same provision.
{¶ 316} Critically, Article XI, Section 9(D)(3) sets forth the remedies that
are available to this court after it first “determines that a general assembly district
plan adopted by the commission does not comply with the requirements of Section
2, 3, 4, 5, or 7 of this article.” Article XI, Section 9(D)(3)(c) provides that when

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this court has found a violation of Section 2, 3, 4, 5, or 7 in considering a plan

adopted pursuant to Article XI, Section 8(C), the court “shall order the commission
to adopt a new general assembly district plan in accordance with this article” if two
additional criteria requiring violations of Article XI, Section 6 are met.
{¶ 317} Pursuant to the plain language of Article XI, Section 9(D)(3), this
court may consider whether a violation of Article XI, Section 6 has occurred only
if it has first found a violation of Article XI, Section 2, 3, 4, 5, or 7. This
requirement is fatal to the claims currently before us.
A. In two of the cases before us, the petitioners have failed to allege a violation of
Article XI, Section 2, 3, 4, 5, or 7
{¶ 318} In League of Women Voters of Ohio v. Ohio Redistricting Comm.,
Supreme Court case No. 2021-1193, and Bennett v. Ohio Redistricting Comm.,
Supreme Court case No. 2021-1198, the petitioners’ complaints challenging the
four-year plan allege only violations of Article XI, Section 6. Because those
petitioners did not allege any violation of Article XI, Section 2, 3, 4, 5, or 7, this
court may not find a violation of Section 2, 3, 4, 5, or 7 in those cases. Accordingly,
pursuant to Article XI, Section 9(D)(3), we may not even reach the question
whether a violation of Article XI, Section 6 has occurred. Thus, based on the
pleadings filed in League of Women Voters of Ohio and Bennett, we would be
required to uphold the adopted plan in those cases due to the petitioners’ failure to
allege a violation of Article XI, Section 2, 3, 4, 5, or 7, even if we had the authority
to review the four-year plan.
B. In the third case before us, the petitioners have alleged a violation of Article
XI, Section 3(B)(2), but that claim is unavailing, precluding this court from
reaching the petitioners’ Article XI, Section 6 claims
{¶ 319} In Ohio Organizing Collaborative v. Ohio Redistricting Comm.,
Supreme Court case No. 2021-1210, petitioners Ohio Organizing Collaborative et
al. (collectively, “OOC”) have alleged violations of Article XI, Section 3(B)(2) in

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their first two causes of action. Even if we had the authority to consider the merits
of such claims, we should still reject them in this case.
{¶ 320} In addressing the merits of the Section 3(B)(2) claims, the second
concurring opinion addresses a matter of first impression. In raising equal-
protection, freedom-of-assembly, and freedom-of-speech challenges, all of which
invoke Article I, OOC has not cited any case in which this court has considered
such challenges to a General Assembly–district plan. In Wilson, this court
considered a challenge under former Article XI and held that “[t]he Ohio
Constitution does not mandate political neutrality in the reapportionment of house
and senate districts, but partisan considerations cannot prevail over the nonpartisan
requirements set forth in Article XI.” 134 Ohio St.3d 221, 2012-Ohio-5367, 981
N.E.2d 814, at paragraph one of the syllabus. But the claims in Wilson arose under
former Article XI, not Article I. See id. at ¶ 2. Therefore, despite its broad wording,
the Wilson holding sheds little light on OOC’s Article I claims here.
{¶ 321} In 2019, the United States Supreme Court considered claims
alleging that the apportionment of congressional districts in North Carolina and
Maryland violated the Equal Protection Clause of the Fourteenth Amendment and
the First Amendment to the United States Constitution. Rucho v. Common Cause,
__ U.S. __, ___, 139 S.Ct. 2484, 2491, 204 L.Ed.2d 931 (2019). The federal district
courts in each of those states had ruled in favor of the plaintiffs.
{¶ 322} The question in Rucho was whether the claims were justiciable in
federal court. Id. at ___, 139 S.Ct. at 2491, 2493-2494. The court began by noting
that “[p]artisan gerrymandering is nothing new. Nor is frustration with it. The
practice was known in the Colonies prior to Independence, and the Framers were
familiar with it at the time of the drafting and ratification of the Constitution.” Id.
at ___, 139 S.Ct. at 2494. The court then clarified that partisan gerrymandering is
not a per se violation of the United States Constitution: “while it is illegal for a
jurisdiction to depart from the one-person, one-vote rule, or to engage in racial

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discrimination in districting, ‘a jurisdiction may engage in constitutional political

gerrymandering.’ ” Id. at ___, 139 S.Ct. at 2497, quoting Hunt v. Cromartie, 526
U.S. 541, 551, 119 S.Ct. 1545, 143 L.Ed.2d 731 (1999). The question presented in
cases in which the practice of gerrymandering is challenged, then, is not whether
partisan gerrymandering occurred but whether the apportioning body went too far.
Id. at ___, 139 S.Ct. at 2498, 2501.
{¶ 323} That question, the court concluded, is not justiciable in federal
court. Id. at ___, 139 S.Ct. at 2499-2500, 2506-2507. To adjudicate such claims,
courts would need “a standard that can reliably differentiate” between
constitutional and unconstitutional political gerrymandering. Id. at ___, 139 S.Ct.
at 2499. The court determined that no such standard exists. Id.
{¶ 324} The court first rejected the idea that the right to equal protection
demands proportional representation: “ ‘The Equal Protection Clause of the
Fourteenth Amendment does not require proportional representation as an
imperative of political organization.’ ” Rucho, ___ U.S. at ___, 139 S.Ct. at 2499,
204 L.Ed.2d 931, quoting Mobile v. Bolden, 446 U.S. 55, 75-76, 100 S.Ct. 1490,
64 L.Ed.2d 47 (1980) (plurality opinion). It then observed that plaintiffs in
political-gerrymandering cases—being unable to insist on strict proportionality—
essentially ask the courts to determine “how much representation particular
political parties deserve—based on the votes of their supporters.” (Emphasis sic.)
Id. The court explained that “fairness” is not a manageable standard for a court to
administer. Id. at ___, 139 S.Ct. at 2499-2500.
{¶ 325} To illustrate that point, the court set forth several examples of what
might be deemed “fair”: a greater number of competitive districts; or “yielding to
the gravitational pull of proportionality and engaging in cracking and packing” to
guarantee each party a fair share of seats; or focusing on “adherence to ‘traditional’
districting criteria, such as maintaining political subdivisions, keeping communities
of interest together, and protecting incumbents.” Id. at ___, 139 S.Ct. at 2500. The

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court concluded that “[d]eciding among just these different visions of fairness (you
can imagine many others) poses basic questions that are political, not legal.” Id.
The court similarly concluded that the First Amendment provides “no standard for
determining when partisan activity goes too far.” Id. at ___, 139 S.Ct. at 2504.
{¶ 326} Ultimately, the Rucho court held that “partisan gerrymandering
claims present political questions beyond the reach of the federal courts. Federal
judges have no license to reallocate political power between the two major political
parties, with no plausible grant of authority in the Constitution, and no legal
standards to limit and direct their decisions.” Id. at ___, 139 S.Ct. at 2506-2507.
Yet the court noted that the states—by statute or in their own constitutions—could
“provide standards and guidance for state courts to apply,” for example by
removing partisans from the redistricting process, by expressly prohibiting partisan
favoritism in redistricting, or by imposing specific requirements for partisan
fairness. Id. at ___, 139 S.Ct. at 2507-2508 (citing examples).
{¶ 327} Rucho was decided under the federal Constitution. The question in
this case is whether the OOC may achieve a different result under provisions of the
Ohio Constitution similar to those in the federal Constitution. The OOC argues that
the adopted plan does not comply with Article XI, Section 3(B)(2), because it
violates the Ohio Constitution’s guarantees of equal protection, see Article I,
Section 2, the right to assemble, see id. at Section 3, and freedom of speech, see id.
at Section 11.
{¶ 328} Historically, this court has held that the Ohio and federal Equal
Protection Clauses “are functionally equivalent and require the same analysis.”
State v. Aalim, 150 Ohio St.3d 489, 2017-Ohio-2956, 83 N.E.3d 883, ¶ 29; see also
Am. Assn. of Univ. Professors, Cent. State Univ. Chapter v. Cent. State Univ., 87
Ohio St.3d 55, 60, 717 N.E.2d 286 (1999) (“the federal and Ohio Equal Protection
Clauses are to be construed and analyzed identically”). But “the Ohio Constitution
is a document of independent force.” State v. Mole, 149 Ohio St.3d 215, 2016-

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Ohio-5124, 74 N.E.3d 368, ¶ 14 (plurality opinion); see also State v. Noling, 149
Ohio St.3d 327, 2016-Ohio-8252, 75 N.E.3d 141, ¶ 11 (the Ohio Constitution’s
Equal Protection Clause may be “stronger than” the federal Equal Protection
Clause); Arnold v. Cleveland, 67 Ohio St.3d 35, 42, 616 N.E.2d 163 (1993) (“As
long as state courts provide at least as much protection as the United States Supreme
Court has provided in its interpretation of the federal Bill of Rights, [they] are
unrestricted in according greater civil liberties and protections to individuals and
groups” under their state constitutions).
{¶ 329} At least one state court interpreting a state constitution has reached
a conclusion contrary to that in Rucho. A three-judge panel of a Superior Court of
North Carolina held that claims of political gerrymandering are justiciable under
the equal-protection, freedom-of-speech, and free-association guarantees of the
North Carolina Constitution. See Common Cause v. Lewis, N.C.Super. No. 18 CVS
014001, 2019 WL 4569584, *3 (Sept. 3, 2019).
{¶ 330} The OOC also cites two other cases in which state courts held that
partisan gerrymandered plans violated provisions of their state’s constitutions. See
League of Women Voters v. Commonwealth, 645 Pa. 1, 178 A.3d 737 (2018);
League of Women Voters of Florida v. Detzner, 172 So.3d 363 (Fla.2015). These
cases were not decided on state equal-protection, freedom-of-assembly, or
freedom-of-speech grounds. The Pennsylvania case was decided under the Free
and Equal Elections Clause of the Pennsylvania Constitution (a provision that the
Ohio Constitution lacks). See Commonwealth at 97, fn. 63. And the Florida case
was decided under that state’s Fair Districts Amendment to the Florida
Constitution, a provision that bears some similarities to Article XI, Section 6 of the
Ohio Constitution. See Detzner at 369-370, 375; Florida Constitution, Article III,
Section 20(a) (“No apportionment plan or individual district shall be drawn with
the intent to favor or disfavor a political party or an incumbent”).

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{¶ 331} The OOC asserts that the Ohio Constitution’s Equal Protection
Clause grants citizens the “right to vote on equal terms.” Although those words are
not in the Ohio Constitution, the OOC argues that the guarantee arises from the
statement in Article I, Section 2, that Ohio voters “have the right to alter, reform,
or abolish” their government. They reason that “the most common way in which
the people alter or reform their government is by voting for representatives who
will enact different policy preferences into statutory law.”
{¶ 332} In support, the OOC cites Hamilton v. Fairfield Twp., 112 Ohio
App.3d 255, 266, 678 N.E.2d 599 (12th Dist.1996), a case in which the court of
appeals struck down a statute allowing a township to unilaterally form a
municipality without the consent of its voters. The court invalidated the statute
because “the right to vote or otherwise choose whether to form a municipal
corporation is a fundamental right guaranteed by Section 2, Article I of the Ohio
Constitution.” Id. at 275. The OOC also relies on State ex rel. Skaggs v. Brunner,
120 Ohio St.3d 506, 2008-Ohio-6333, 900 N.E.2d 982, in which this court held that
the secretary of state could not order one county to apply a standard unique to the
county for the rejection of provisional ballots. Id. at ¶ 63. In support of that
conclusion, this court stated, “ ‘The right to vote includes the right to have one’s
vote counted on equal terms with others.’ ” Id. at ¶ 58, quoting League of Women
Voters of Ohio v. Brunner, 548 F.3d 463, 476 (6th Cir.2008).
{¶ 333} With such arguments, the OOC makes an absolutely unconvincing
case that Ohio’s Equal Protection Clause provides the manageable standards of
review that its federal counterpart lacks. First, the OOC’s argument that the right
to “alter, reform, or abolish” the government translates to the “right to vote on equal
terms” is attenuated; the OOC provides no support for its claim that voting for
legislative representatives is the “most common” way that Ohioans reform their
government. Indeed, the principal case that the OOC relies on, Hamilton, involved
the right to vote on the form of government (whether to create a municipality), not

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the right to vote for representatives within an existing form of government. See
Hamilton at 275. And Skaggs dealt with inequality in the rules governing whether
votes were to be counted or not counted. Skaggs at ¶ 63. Inequality in the relative
weight of those votes was not at issue. And finally, the right to “alter, reform, or
abolish” the government is actuated by Ohio voters amending the Constitution, not
by electing different representatives to the current government. The OOC thus has
not shown that it has a viable claim arising under Ohio’s Equal Protection Clause.
{¶ 334} The OOC also has not shown that it has a viable claim under Ohio’s
Right to Assemble or Freedom of Speech Clauses. It points out the linguistic
differences between the First Amendment to the United States Constitution and
Article I, Sections 3 and 11 of the Ohio Constitution. That is, the federal
Constitution contains prohibitory language—“Congress shall make no law * * *
abridging the freedom of speech * * * or the right of the people peaceably to
assemble,” First Amendment to the United States Constitution—while the Ohio
Constitution contains affirmatively phrased guarantees—“[t]he people have the
right to assemble,” Ohio Constitution, Article I, Section 3; “[e]very citizen may
freely speak,” id. at Section 11. But the OOC concedes that in other contexts, this
court has interpreted these Ohio provisions coextensively with federal law and has
never considered these Ohio provisions in connection with redistricting. The OOC
makes no case for finding any more specific or manageable standards applicable to
reviewing partisan-gerrymandering claims under Ohio’s Right to Assemble and
Freedom of Speech Clauses than their federal counterparts.
{¶ 335} The OOC has failed to identify support allowing this court to decide
that the Ohio Constitution provides greater protection than the federal Constitution
against partisan gerrymandering by way of Ohio’s Equal Protection, Right to
Assemble, or Freedom of Speech Clauses. Because the OOC has not set forth a
convincing argument for deciding this case under Article XI, Section 3(B)(2), this
court is compelled to reject its Section 3(B)(2) claims. We accordingly would be

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required to uphold the four-year plan for failure to establish a violation of Article
XI, Section 2, 3, 4, 5, or 7, even if we had the authority to review the four-year plan.
III. Even if this court could review the district plan for a violation of Article
XI, Section 6 in these cases, no violation of that section has been proved
beyond a reasonable doubt
{¶ 336} Although I do not believe that this court should reach the merits of
petitioners’ arguments, given that we do not have the constitutional authority to do
so, I note that in addition to the OOC’s failure of to establish its claimed violation
of Article XI, Section 3(B)(2), the petitioners in all three cases have generally failed
to meet the applicable burden of proof. Because it is apparent that the petitioners
in these cases have not met their burden of proving that the district plan is
unconstitutional beyond a reasonable doubt, I must address the majority opinion’s
flawed analysis of the merits of the claims. To reach a desired conclusion, the
majority opinion ignores this court’s well-established precedent in reaching the
desired result.
{¶ 337} This court interprets the language of a constitutional provision de
novo. While we may be swayed by an interpretation presented by the parties, we
give no deference to and are not bound by those interpretations; the proper
interpretation of a constitutional provision is a duty that lies entirely with this court,
as it is purely a question of law. See State v. Codeluppi, 139 Ohio St.3d 165, 2014-
Ohio-1574, 10 N.E.3d 691, ¶ 9 (questions of law are reviewed de novo); Wilson,
134 Ohio St.3d 221, 2012-Ohio-5367, 981 N.E.2d 814, at ¶ 13 (the same rules for
interpreting statutes apply to interpreting constitutional provisions). Nevertheless,
while this court interprets a constitutional provision de novo, this does not diminish
petitioners’ burden of proof.
{¶ 338} Generally, the party who makes a facial constitutional challenge to
a legislative act has the burden of proving that the legislative act is unconstitutional
beyond a reasonable doubt, the highest standard of proof in our legal system. See

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State ex rel. Dickman v. Defenbacher, 164 Ohio St. 142, 128 N.E.2d 59 (1955),
paragraph one of the syllabus; State ex rel. Ohio Congress of Parents & Teachers
v. State Bd. of Edn., 111 Ohio St.3d 568, 2006-Ohio-5512, 857 N.E.2d 1148, ¶ 21.
This important standard of proof is derived from the Dickman decision and has
remained unchanged since that case was decided in 1955. This court has
consistently and repeatedly cited Dickman for this standard. See, e.g., Yajnik v.
Akron Dept. of Health, Hous. Div., 101 Ohio St.3d 106, 2004-Ohio-357, 802
N.E.2d 632, ¶ 16. Our recent caselaw concerning legislative redistricting employs
that analysis. See Wilson at ¶ 23-24.
{¶ 339} The beyond-a-reasonable-doubt standard prevents this court from
becoming a policymaking branch of this state’s government and helps to maintain
the separation of powers inherent in the Ohio Constitution. And the reasoning
behind this standard is to avoid, whenever possible, a constitutional crisis in this
state. See State ex rel. Swetland v. Kinney, 69 Ohio St.2d 567, 576, 433 N.E.2d 217
(1982) (the sanctity of legislative enactments is firmly entrenched in our judicial
system); see also Holeton v. Crouse Cartage Co., 92 Ohio St.3d 115, 135, 748
N.E.2d 1111 (2001) (Moyer, C.J., dissenting); The Federalist No. 78, at 468-469
(Alexander Hamilton) (Clinton Rossiter Ed.1961) (“The courts must declare the
sense of the law; and if they should be disposed to exercise will instead of judgment,
the consequence would equally be the substitution of their pleasure to that of the
legislative body”).
{¶ 340} This high standard applies in these cases because, under our
precedent, a plan adopted by the redistricting commission must be considered a
legislative act. See Wilson, 134 Ohio St.3d 221, 2012-Ohio-5367, 981 N.E.2d 814,
at ¶ 20. In Wilson, this court determined that the plans created by the Ohio
Apportionment Board—the body then responsible for drawing Ohio’s legislative-
district maps—should be considered legislative acts because redistricting has been
primarily and historically a legislative function. Id. We now have the same

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situation that we faced in Wilson, and redistricting is still an historically legislative

function. It would be unreasonable to apply a different standard. Therefore, the
district plan must be treated as a legislative act. And because redistricting is a
legislative act, the presumption of constitutional validity applies. See id. at ¶ 21.
Thus, petitioners must prove that the plan is unconstitutional beyond a reasonable
doubt. Although the majority opinion acknowledges this standard, see majority
opinion at ¶ 77, the analysis set forth in the majority opinion falters in applying the
standard.
{¶ 341} This court has determined that for a party to succeed on a facial
constitutional challenge, the party must demonstrate beyond a reasonable doubt that
there is no plausible interpretation of the challenged provision under which the
provision would be valid. See Harrold v. Collier, 107 Ohio St.3d 44, 2005-Ohio-
5334, 836 N.E.2d 1165, ¶ 37. The court in Collier, relying on United States v.
Salerno, 481 U.S. 739, 745, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987), stated, “The
fact that a statute might operate unconstitutionally under some plausible set of
circumstances is insufficient to render it wholly invalid.” Collier at ¶ 37. This
court reaffirmed that principle in Ohio Grocers Assn. v. Levin, 123 Ohio St.3d 303,
2009-Ohio-4872, 916 N.E.2d 446, ¶ 24. In Ohio Grocers Assn., the court
determined that when there are two plausible interpretations of a statute, under one
of which the statute is constitutional and under the other it is unconstitutional, the
challenging party cannot as a matter of law demonstrate beyond a reasonable doubt
that the statute is unconstitutional on its face. See id.; see also State v. Aalim, 150
Ohio St.3d 463, 2016-Ohio-8278, 83 N.E.3d 862, ¶ 36 (Kennedy, J., concurring in
part and dissenting in part), vacated on other grounds after reconsideration, 150
Ohio St.3d 489, 2017-Ohio-2956, 83 N.E.3d 883.
{¶ 342} Important here, this court in Ohio Grocers Assn. specifically
recognized that there were competing plausible readings of the legislative act at
issue and that the act could thus not be found unconstitutional beyond a reasonable

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doubt. Id. at ¶ 24. This principle directly informs our analysis in these cases. We
have recognized that “it is not enough to show that one plausible reading requires
[the legislative act] to be stricken as unconstitutional, when another plausible
reading permits it to survive.” Id.; see also Collier at ¶ 37.
{¶ 343} After reviewing the evidence in these cases, the majority opinion
and the first dissenting opinion reach different conclusions. The majority opinion
proposes a plausible reading of the district plan under which the plan is
unconstitutional. Majority opinion at ¶ 131. However, the first dissenting opinion
sets forth a competing plausible reading under which the plan is constitutional,
determining that the evidence indicates that the redistricting commission made an
effort to comply with Article XI, Section 6. Dissenting opinion of Kennedy, J., at
¶ 247-251. The plausibility of the majority opinion’s interpretation finding the plan
unconstitutional and the plausibility of the first dissenting opinion’s interpretation
finding the plan constitutional necessitates, under longstanding Ohio precedent, the
conclusion that petitioners cannot, as a matter of law, show beyond a reasonable
doubt that the plan is unconstitutional. Petitioners have not met their burden of
proof, and thus their claims must fail. For the majority opinion to hold otherwise
means that, in effect, nearly every case cited in this section of this opinion must be
overruled or considered to be of no precedential value. The majority opinion’s
analysis ignores and undermines Ohio law as we know it.
{¶ 344} For the reasons stated above and given the evidence before us in
these cases, I would conclude that if we could address the Article XI, Section 6
arguments on the merits, which we are not permitted to do but the majority opinion
does anyway, petitioners have still failed to establish a constitutional violation
beyond a reasonable doubt.
IV. Conclusion
{¶ 345} Contrary to the assertion set forth in the majority opinion, my
overriding concern in these cases is not the outcome of the majority’s analysis.

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Instead, the most troubling aspect of the majority opinion is that it engages in a
merits analysis when Article XI contains no provision making four-year plans
subject to Article XI, Section 9, which leaves this court with no authority to review
four-year plans. Critically, the citizens of Ohio voted for the specific language and
text of Article XI, and this court must enforce the Ohio Constitution as written. By
ignoring the fact that there is no “except” language contained in Article XI, Section
8(C)(1)(a), the majority opinion undermines the independence, impartiality, and
integrity of this court. It is fundamental that this court will not consider a
constitutional challenge that is not properly before it and will consider a
constitutional challenge only when it has no other choice. See Greenhills Home
Owners Corp. v. Greenhills, 5 Ohio St.2d 207, 212, 215 N.E.2d 403 (1966) (“a
court will not exercise its power to determine the constitutionality of a legislative
enactment unless it is absolutely necessary to do so”).
{¶ 346} Notably, neither the majority opinion nor either of the two
concurring opinions attempts to answer the basic question raised in this opinion: If
Article XI, Section 8(B) (ten-year plan adopted after an impasse), which is the
paragraph immediately preceding Section 8(C)(1)(a) (four-year plan adopted after
an impasse), and Section (8)(C)(1)(b) (six-year plan adopted after an impasse),
which is the paragraph immediately following Section 8(C)(1)(a), both include the
language “except as provided in Section 9 of this article,” what does the omission
of that same language from Section 8(C)(1)(a) mean? Moreover, if, as the majority
opinion argues, Article XI, Sections 9(A) and 9(B) somehow override the conscious
decision to omit that language from Section 8(C)(1)(a), why would Section
8(C)(1)(a) even need to exist in the Ohio Constitution? For that matter, why would
Sections 8(B) and 8(C)(1)(b) need to exist in the Constitution if Sections 9(A) and
9(B) always apply?
{¶ 347} Most importantly, neither the majority opinion nor either of the
concurrences accords appropriate significance to the fact that the complaints filed

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in all three of these cases and petitioners’ arguments during oral argument
demonstrate that the bases for these cases are the impasse procedures under Article
XI, Section 8. Why do the majority and concurring opinions ignore the specific
allegations underlying the entirety of these cases? The reason is simple. The honest
and reasonable answers to those questions would undermine the entirety of those
opinions.
{¶ 348} There may be more than a little irony in the majority opinion—
which shies away from the text and structure of Article XI that was added to the
Constitution by a 2015 amendment that passed with 71 percent of the vote, see Ohio
Secretary of State, Statewide Issue History—being supported by two concurring
opinions suggesting that the state of Ohio should consider amending the
Constitution to create a so-called “independent redistricting commission,”
concurring opinion of Brunner, J., at ¶ 180; see concurring opinion of O’Connor,
C.J., which is a concept that Ohio voters soundly rejected in 2012 by 63 percent of
the vote, see Ohio Secretary of State, Statewide Issue History. As required by my
oath to this office, I will stick with both the enacted Article XI, which received
bipartisan support, and with the voters of Ohio who overwhelmingly approved its
text, and I will avoid entering the discussion of the “independent redistricting
commission” concept, which was decidedly rejected by the citizens of Ohio after
the 2011 redistricting process and which involves policy issues beyond the scope
of the cases presently before us.
{¶ 349} By reaching the merits of these cases even though this court lacks
the authority to do so—and our authority is established by the Ohio Constitution—
the majority opinion makes this court less independent, as it now becomes a
policymaking part of Ohio’s government, a role belonging to the General
Assembly. And it effectively becomes a third policymaking arm of Ohio’s
government, and thus less impartial, as policy must be debated under the Ohio
Constitution by all Ohioans through their elected representatives, whether the

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representatives are legislators or administrators in the executive branch of the

government.
{¶ 350} The saddest and worst result for the citizens of Ohio due to the
majority opinion’s reaching the merits of these cases in order to formulate policy—
a role that this court is not designed to do—is that the majority opinion undermines
the integrity and good reputation of this court. The majority opinion undercuts the
citizens’ support of this institution as the ultimate and final arbiter of the law,
particularly the Ohio Constitution, as written. By making a policy decision instead
of looking only at the words of the Constitution, the majority opinion abdicates this
court’s responsibility to the citizens of Ohio and makes this court a “super
legislative” branch of the government less worthy of Ohioans’ trust.
{¶ 351} The majority opinion’s constitutional analysis is not logical, is not
reasoned, and does not properly construe the text of the Constitution, and thus it
undermines confidence in this court. The resulting lack of the citizens’ support will
harm the judicial branch of Ohio’s government for generations. Therefore, I
respectfully, and sadly, must dissent.
_________________
ACLU of Ohio Foundation, Inc., Freda J. Levenson, and David J. Carey;
American Civil Liberties Union, Alora Thomas, and Julie A. Ebenstein; and
Covington & Burling, L.L.P., Robert D. Fram, Donald Brown, Joshua González,
Juliana Goldrosen, David Denuyl, L. Brady Bender, Alexander Thomson, Anupam
Sharma, James Hovard, and Yale Fu, for petitioners in case No. 2021-1193.
McTigue & Colombo, L.L.C., Donald J. McTigue, and Derek S. Clinger;
and Elias Law Group, L.L.P., Abha Khanna, Ben Stafford, Aria C. Branch, Jyoti
Jasrasaria, and Spencer W. Klein, for petitioners in case No. 2021-1198.
Reed Smith, L.L.P., Peter M. Ellis, M. Patrick Yingling, Brian A.
Sutherland, Ben R. Fliegel, Brad A. Funari, and Danielle L. Stewart; and Brennan
Center for Justice at New York University School of Law, Alicia L. Bannon, Yurij

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Rudensky, Michael Li, Harry Black, and Ethan Herenstein, for petitioners in case
No. 2021-1210.
Dave Yost, Attorney General, and Organ Law, L.L.P., Erik J. Clark, and
Ashley Merino, special counsel to Attorney General Dave Yost, for respondent
Ohio Redistricting Commission.
Dave Yost, Attorney General, and Bridget C. Coontz, Julie M. Pfeiffer, and
Michael A. Walton, Assistant Attorneys General, and Michael J. Hendershot,
Deputy Solicitor, for respondents Ohio Governor Mike DeWine, Ohio Secretary of
State Frank LaRose, and Ohio Auditor Keith Faber.
Taft Stettinius & Hollister, L.L.P., W. Stuart Dornette, Beth A. Bryan, and
Philip D. Williamson; and Nelson Mullins Riley & Scarborough, L.L.P., Phillip J.
Strach, Thomas A. Farr, John E. Branch III, and Alyssa M. Riggins, for respondents
Senate President Matt Huffman and Speaker of the House Robert Cupp.
Ice Miller, L.L.P., Diane Menashe, and John Gilligan, for respondents
Senator Vernon Sykes and House Minority Leader Emilia Sykes.
Thompson Hine, L.L.P., Stephanie M. Chmiel, and Mary E. Csarny, urging
granting of relief for amicus curiae David Niven, Ph.D.
Andrew W. Garth, City Solicitor, Emily Smart Woerner, Deputy City
Solicitor, and Shannon Price, Assistant City Solicitor, urging granting of relief for
amicus curiae city of Cincinnati.
Ulmer & Berne, Steven S. Kaufman, Dolores P. Garcia Prignitz, and Sara
S. Dorland; and Rob Weiner, Chris Lamar, and Valencia Richardson, urging
granting of relief for amicus curiae Campaign Legal Center, in case No. 2021-1193.
The Chandra Law Firm, L.L.C., Subodh Chandra, and Donald Screen; and
NAACP Office of the General Counsel, Janette McCarthy Wallace, urging granting
of relief for amicus curiae Ohio State Conference of the NAACP, in case Nos.
2021-1193 and 2021-1210.

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John M. Haseley, urging granting of relief for amicus curiae We Are Ohio,
in case No. 2021-1193.
Isaac, Wiles & Burkholder, L.L.C., Donald C. Brey, and Ryan C. Spitzer,
urging denial of relief for amicus curiae Renew Ohio.
_________________

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